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

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

The Government supplied the following information:

A Bill resulting from a tripartite agreement in the framework of one of the committees of the Social Pact (government, employers, workers) will be presented during the legislative session starting on 20 July 1996. This Bill concerns the regulation of collective bargaining in the public sector.

The committee included representatives from (i) government organs; the Ministries of Labour, Habitat, and the administrative department of the Civil Service; (ii) employers' organizations: the National Association of Industries (ANDI), the Colombian Federation of Insurance Companies (FASECOLDA); (iii) unions: the Unique Workers' Central (CUT), Workers' Confederation of Colombia (CTC), the Union of State Workers of Colombia (UTRADEC), the United Federation of State Workers of Colombia (FUTEC), etc.; and (iv) the Association of Lawyers specializing in labour law in the service of workers.

With this Bill, which will be welcomed by the Congress of the Republic, an important step has been taken in the harmonization of Colombian labour legislation with the content and objectives of ILO Conventions Nos. 98 and 151. This illustrates the political will of the national Government to adapt labour legislation to the requirements of ILO Conventions.

Likewise, and as a result of the recommendations of the Tripartite Commission for Policy Development to promote and strengthen the trade union movement, the Government has accepted a compromise of analysing and modifying standards likely to stifle the free exercise of union activity.

This analysis has led to the elaboration of a Bill which will also be presented during the legislative session beginning on 20 July 1996. This Bill incorporates, inter alia, the following recommendations:

- to repeal the requirement of a statement from the labour inspector as to the absence of another union before proceeding to the registration of a union (article 365, subparagraph (G), section (1) of the Substantive Labour Code (CST));

- to repeal the requirement that two-thirds of the founding members of a union be Colombian (article 384 of the CST);

- to repeal the possibility for a labour inspector to attend a union meeting, without prior notification (article 486 of the CST);

- to eliminate the requirement of Colombian nationality as well as that of exercising an activity, a profession, or a function, to be a union leader (article 388, paragraphs (a) and (c) of the CST);

- to eliminate the requirement of Colombian nationality to be a member of a committee in charge of negotiating a list of complaints (article 432 of the CST).

The judicial procedure for future approval of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and the Labour Relations (Public Service) Convention, 1978 (No. 151), is under review at the Ministry of External Relations.

Likewise, the question of approving the San Salvador Protocol, the international instrument which sets forth the economic and social rights of workers, is under discussion at the Congress of the Republic.

The first national event concerning international labour Conventions and Colombian social and labour legislation was observed on 23 and 24 May 1996. This was organized to honour the great legal institutions of the country (the Constitutional Court, the Supreme Court of Justice, and the Council of State), whose representatives are currently attending the International Labour Conference as technical advisers of the Government delegation. At the same time a debate on the same theme was organized with a specialist on international labour standards from the ILO.

Under the auspices of UNDP and the ILO, a tripartite programme was implemented on ethics and the new culture of labour relations based on dialogue, tolerance, consultation, recognition of others and renouncing intransigent attitudes or positions, and the conviction that peace is above all a cultural problem and not only the fact of silencing arms.

In this perspective, it is also planned to organize a seminar on the peaceful resolution of conflicts, bringing together representatives of three unions, the Ministry of Labour and Social Security, as well as the university of Antioquia.

The constitution of more than 25 local tripartite committees on employment, presided over by mayors, and the formation of committees for the elimination of child labour, as well as the impetus given by the signature of more than 320 collective bargaining agreements between employers and unions, including the public sector, clearly reflect the consolidation of the role of mediator and catalyst of the Ministry of Labour, not only in terms of the policy of the present Government, but as a foundation of the policy of the State.

Written representations and petitions have been addressed to the Attorney-General of the Nation so as to inform the country of the evolution of investigations in progress concerning assassinated or missing trade union members; to find more efficient means of fighting against immunity in cases of human rights violations; and to protect the life of trade union members who receive death threats.

These measures have been pursued by the Ministry of Labour and Social Security which intends to go much further in the context of applying international labour standards and the new national policy. In this connection, the Minister hopes that he can count on the same support and cooperation from the ILO as he enjoyed when he was a trade union member. Thus, he invites the Committee on the Application of Standards and the Committee on Freedom of Association to undertake a new mission to Colombia and to join their efforts to promote union rights, dialogue and negotiation on social and labour matters.

In addition, a Government representative stated that the observations of the Committee of Experts presented an excellent opportunity to establish a dialogue on the basis of the initiatives developed recently by the Ministry of Labour and Social Security. The right to freedom of association was enshrined in the Constitution of Colombia which provided for the possibility of establishing trade union organizations for private workers and for public workers. Colombian legislation also included the possibility of establishing joint trade union organizations comprised of public employees and official workers, taking into account the legal link of these organizations to the public administration. Official workers could submit petitions and the authorities then had the obligation to consider and negotiate the petitions in question. Jurisprudence dating from the end of 1994 guaranteed the right to form trade unions for public employees because of its constitutional nature. An example of this was the sentence, handed down by the highest administrative court last year, which ordered the reinstatement of a public employee of the Finance Ministry who benefited from the protection against discrimination accorded trade unionists. As for collective bargaining in the public sector, the speaker referred to the draft Bill which would be submitted at the beginning of the Legislative Session of Congress next July, particulars of which were included in the written information supplied by the Government.

The speaker also referred to the National Commission on the Civil Service, established as the highest body for administration and supervision of the career public service, with the participation of two representatives of public sector workers. The national Government, working together with Congress and through a very broad process of consultation with the workers, was examining possible legislation to strengthen the presence of workers, the office that defends public interests and other authorities in order to ensure strict compliance with rights in the career public service.

All Colombian workers were guaranteed the right to strike under the national Constitution, with the exception of essential public services which must be defined by law. In this respect, the Minister of Labour did not declare illegal a strike which was undertaken last February by the workers of the Rural Fund. A draft regulation concerning the right to strike was now being discussed in one of the tripartite committees of the Social Pact. It was important to emphasize that Congress had agreed to delay the discussion of another government Bill, which was referred to by the Committee of Experts, while awaiting the conclusions of the tripartite committee.

Finally, the speaker acknowledged that, even though much remained to be done, the political will shown by the Ministry of Labour and Social Security and the participation of workers and employers would bring about a better future in terms of trade union rights and guarantees. Referring to the election of Colombia as a titular member of the Governing Body, he stressed that it was his intention as Minister of Labour and Social Security, and it was also the intention of the President of the Republic, to continue to cooperate in order to ensure constitutional rights and the rights enshrined in the ILO Conventions, extending these to all workers in the country.

The Workers' members recalled that on no fewer than eight occasions between 1989 and 1996, Colombia has been cited for significant violations against trade union rights in general. Indeed, Convention No. 98 was discussed in 1994, as well as in 1992 and 1991. Last year during the discussion of Convention No. 87, this Committee noted with interest the presentation made by the Government concerning the establishment of tripartite committees on trade union developments and labour relations on the enterprise level. In the report of the Committee of Experts for 1995 Colombia was listed as a case of progress on Convention No. 98. This was due to a constitutional court ruling in December of 1993, which declared that Section 409 of the Labour Code, which limited trade union protection against discrimination, was null and void as a breach of the 1991 political Constitution.

Regrettably this progress had been more apparent than real. It had taken place in a persistent climate of violence against unions and the Committee was once again faced with the need to insist, as the Experts did in 1995, that the public employees who were not engaged in the administration of the State be granted full rights under Convention No. 98. The Workers' members did not believe that progress on one or two counts absolved the Government from continued efforts toward overall genuine application of the Convention. In 1994 this Committee noted "with interest" the statements by the Government that it "undertook to align the legislation with the requirements of ratified Conventions, possibly with technical cooperation from the ILO". Yet this year again, the Committee of Experts "regrets to note that the Bill to amend various provisions of labour law submitted recently by the Government to Congress does not cover sections 414(4) and 416 of the Labour Code", which prohibited unions of public employees from concluding collective bargaining agreements. The Workers' members hoped that the Government would explain such a significant omission, which had been repeatedly and unanimously criticized by this Committee, the Committee of Experts and the Committee on Freedom of Association. They insisted upon the necessity for Colombia to introduce and maintain a positive and constructive attitude towards promoting collective bargaining, social dialogue, and trade union rights. The Government and the Congress of Colombia needed to adopt, without any further delay, new legislation which would amend all provisions of the Labour Code, including sections 414(4) and 416, to conform with Convention No. 98. While supporting the idea of technical cooperation with the ILO, the Workers' members warned against the abuse of technical assistance to delay changes or to discredit the ILO. Technical assistance must go hand in hand with a clear political will to apply the ILO Conventions. It was clear that the Minister of Labour had that will, but what about the rest of Government in Colombia? The Workers' members felt that the continuing situation in Colombia dictated the necessity for clear and strong conclusions in this case.

The Employers' members recalled that Colombia was a case which had been dealt with on many occasions in this Committee. This time it was about freedom of association and the right to collective bargaining and, according to the Committee of Experts' report, a tripartite dialogue committee had made proposals which would change the legal situation and bring Colombian labour law closer to the requirements of the Convention. However, quite obviously one element still needed attention, because public employees were not all authorized to carry out collective bargaining negotiations. The Minister had said that, according to the Constitution, freedom of association was guaranteed for all. That was an important foundation. But the Employers' members were talking about the next step to ensure the possibility of carrying out collective bargaining negotiations, and obviously there were still restrictions.

The Employers' members pointed out, however, that in the last few years there had been a certain amount of progress. The Minister referred to the tripartite discussions which had taken place and the results achieved, which should lead to an amendment of national legislation. The Employers' members agreed with the Minister that a great deal remained to be done and hoped that a recognizable degree of progress would be continued so that the positive approach taken by Colombia in the last few years would be carried on into the future.

The Workers' member of Colombia stated that, as a result of complaints formulated by the Central Unitaria de Trabajadores (CUT) and the Confederation of Workers of Colombia (CTC), supported by the ICFTU, there had been progress reflected by the new tripartite agreement for the elaboration and presentation of the draft Bill on collective bargaining of public employees, in pursuance of Convention No. 98. However, despite what had been said by the Government, the question of violence against trade unions continued to be one of the factors that most seriously affected the successful operation of Colombian trade unions. In 1995, there were more than 263 examples of violence involving trade unions, which was an increase of more than 30 per cent over the number of similar cases in the previous year. Most of these were serious cases that had badly influenced collective bargaining because more than 90 per cent had resulted in the death of the trade unionists and were directed against trade union leaders and activists. Since 1995, the tragedy of the banana workers organized in SINTRAINAGRO had continued and this year more than 160 affiliates had been killed. In the last nine years there had been some 300 assassinations of teachers belonging to the teachers' union, and there had been hundreds of cases of threats of violence. In 1995, 22 teachers had been killed.

The State and the employers continued to use criminal law against trade unionism. There were many employer strategies that had been used to avoid the exercise of proper collective bargaining rights, for example, through limitations placed on collective bargaining, particularly by a minority trade union, and through agreements to prevent the creation and functioning of unions. In addition to the restrictions put on collective bargaining, there had been a denial of the right to strike, in particular to almost all state-employed workers. As a particular feature of the development model of his country, there had been denial not only of the collective rights of workers, but also of their individual rights. Approximately ten out of every 100 workers suffered from unemployment, 13 per cent of those working were affected by underemployment and one-fifth had only short-term contracts. The speaker stressed the responsibility of the State in all these aspects. He asked the Conference to point to the concrete measures that the Government must take to respect trade union rights and to ensure the proper mechanism for supervising their implementation. Finally, he invited employers, workers and governments of the world to pay more attention to the question of violence against trade unionists in Colombia and to undertake the proper procedures in seeking a solution to the problem of violence affecting the country.

Another Workers' member of Colombia stated that the right to collective bargaining enshrined in the Convention had been disappearing in Colombia, through a process which had not only affected public employees and public servants, but also private sector workers, particularly in those areas of the private sector where trade unions were a minority. Furthermore, the insufficient protection of collective bargaining provided by law was too often not upheld. He noted that his organization, the CGT, was discriminated against because it had not signed the tripartite agreement. He stressed that when laws were a dead letter, democracy entered a crisis. The deterioration of collective bargaining was also related to the lay-off of 140,000 state workers between 1990 and 1994 and the thousands of state workers laid off during the present administration. Moreover, in Colombia collective bargaining occurred in an environment of violence which had affected 400,000 victims in 15 years. For example, he noted that recently, the trade unionist of the CUT, Luis Eduardo Garzón, had been threatened with death, and the trade union leader Aída Avella, had been a victim of an attempt on her life on 7 May 1996 and was now exiled in Switzerland. The speaker emphasized the gravity of the situation and asked for the complete defence of human rights, in particular the right to life, and an end to the dirty war, and that Convention No. 98 be fully respected through swift diligence from the authorities. He stressed the importance of building a new culture and the possibility of a new society, which necessarily involves compliance with ILO Conventions.

The Workers' member of Spain expressed his frustration with the present case. He stated that appearances should not be used to hide reality, such as in the present case which had been discussed year after year and condemned without stopping the daily assassinations of trade unionists - which was the main problem with respect to trade union rights. He stated that Convention No. 98 was one of the four or five most important Conventions and that collective bargaining was an essential task and right for trade unions. He emphatically asked for the repeal of sections 414(4) and 416 of the Labour Code which denied collective bargaining to 600,000 public employees.

The Workers' member of Argentina supported the opinion of the Workers' member of Spain, that appearances should not hide reality. He stressed that the right to collective bargaining in the public sector was a long-standing aspiration of the ILO and was a reality in the majority of countries present in this Committee, although in practice the development of collective bargaining had faced difficulties. As an example, he noted that public employees in Colombia could only make "respectful petitions" to consider their complaints, such that collective bargaining did not exist for them. He noted that there had been reference to the need for a new culture of labour relations, which meant that there should be collective bargaining, as well as access to the necessary information during negotiations and authentic participation of the social partners. Lastly, he expressed the hope that next year all workers in Colombia would be able to complete collective agreements.

The Workers' member of Ecuador stated that during the 1970s and part of the 1980s, Latin American democracies had been restored after periods of dictatorships. Thus, it was now difficult to see that there were still countries with similar, or worse, situations with regard to the violations of trade union and human rights, as was the case in Colombia. He noted the numerous assassinations of trade unionists by hitmen and paramilitary groups, as well as the deterioration of freedom of association and collective bargaining. He stressed that the prohibition of collective agreements for public employees was contrary to Convention No. 98. In addition, given the current conditions of the country, not respecting this Convention could be interpreted as approval of the repression of the trade union movement. He indicated that it was important to amend the legislation as noted by the Committee of Experts, and expressed the hope that the Government would follow its recommendations and that next year this Committee would not have to discuss the application of Conventions Nos. 87 and 98.

The Workers' member of Uruguay stated that year after year the discussion of the cases concerning Colombia were desperate because of their gravity. He indicated that he had faith in the goodwill of the Minister of Labour (who, as a trade unionist, had defended trade union and human rights). He expressed the hope that the draft law, which resulted from a tripartite agreement, would allow progress with regard to the application of the Convention. He also expressed the hope that the Congress of the Republic would respect the agreements of the tripartite commission in this respect. He stated that collective bargaining was closely related to respecting human rights since without such rights, collective bargaining was not possible. In Colombia, collective bargaining was a constitutional right, but was not respected in practice. He expressed the hope that the Government, and not only the Minister of Labour, would commit itself to respect human rights, ending in particular the assassinations, to guarantee collective bargaining in relation to Convention No. 98, and to achieve a change permitting the step from the culture of violence to the culture of peace and to end the numerous assassinations of trade union leaders.

The Government member of the United States appreciated the statements made by the Minister of Labour of Colombia. She referred to the observation of the Workers' members that it was the eighth time that the Committee discussed some aspect of freedom of association in Colombia. She noted that for a long time, this Committee had been concerned with the legislative defects in the area of freedom of association in relation to both Conventions Nos. 87 and 98. She expressed concern with the cycle of violence that has affected all Colombians, particularly trade unionists and other activists who were willing to take a stand for workers' and human rights. She observed that last year the Committee noted with guarded optimism that although the situation was still extremely serious, there was some movement in the right direction and it appeared that such movement was continuing. She welcomed the initiatives that the Minister of Labour had described and his assurance that the Government had the political will to bring Colombia's law and practice into conformity with ILO standards. She questioned, however, whether the Bill concerning collective bargaining in the public sector was drafted with any assistance from the ILO and whether it did in fact address the concerns raised by the Committee of Experts. She encouraged the Government to continue with its positive efforts, to use ILO technical assistance in the process of drafting legislation responding to the concerns raised by the Committee of Experts, and to make certain that the necessary legislative measures were soon adopted. Lastly, she expressed the hope that very soon this case would be noted as a case of progress.

The Workers' member of Panama insisted that Colombian legislation be amended in accordance with Convention No. 98. He emphasized how serious it was that in Colombia, investigations did not determine nor punish who was guilty of the assassinations of trade unionists and as a result there was a situation of complete impunity. He stressed that, without the right to life, the law was useless. He referred to recent death threats against leaders of the Petroleum Union and of the TELECOM Workers' Petroleum Union.

The Workers' member of Pakistan summarized in detail the previous statements of the Workers' members, which he supported. He expressed the hope that sections 414(4) and 416 of the Labour Code (prohibiting collective bargaining for public employees) would be amended in conformity with Articles 4 and 6 of the Convention. He stressed the difficulty and the gravity of the situation in Colombia and its trade union movement. He expressed the hope that trade unionists would be protected, that the comments of the Committee of Experts and those of this Committee would be followed, and that the Minister of Labour would be able to achieve all of the expected positive changes.

The Government representative indicated that the Government had the will to amend sections 414(4) and 416 of the Labour Code and in this respect, as part of a recent process of tripartite consensus, there had been a draft law amending the said provisions (this draft was different from that referred to in the observation of the Committee of Experts). This consensus allowed the adoption of this draft law by the Congress of the Republic to be more likely. He recognized that if in the legislation there was no right to collective bargaining for public servants, in practice, teachers and the employees of the Rural Fund did bargain collectively. In addition, social security workers, telecommunication workers, energy sector workers and health sector workers were currently negotiating. He noted that the President of the Republic had stated that he wanted to strengthen trade unionism. In the framework of this policy, up to 31 March of last year, the Ministry of Labour had mediated some 300 collective bargaining agreements and collective bargaining had developed significantly. There had also been an increase in the number of trade union organizations. The speaker indicated that with the support of the ILO and the United Nations, a programme financed with $1 million had been developed in Colombia to strengthen trade unionism. Furthermore, within a few weeks another programme between the ILO and the Government would be implemented to strengthen tripartism and new labour relations. As to the noted situation of impunity, the speaker stated that since he had assumed his post and by a decision of the national Government, the executive branch had requested the Attorney General of the Republic to respond to each of the cases in which there had been violation of human rights of workers and trade unionists. The speaker added that the trade union movement in Colombia was independent and fundamental to democracy. He referred to the statement made by the Government member of the United States and indicated that with regard to the discussion of the tripartite commission on the draft law concerning collective bargaining in the public sector, the Government had followed the provisions of Convention No. 151. As to the culture of violence and death, the speaker stated that it was a painful subject, and indicated that there had been 30,000 murders in one year and that besides condemnation of this, solidarity was needed and there was a tremendous amount of work to be done. In this respect, he noted that the Government worked with NGOs and other social organizations to achieve a culture of peace. He stated that the assassinations and violent acts affected all types of people, professions and social sectors. He stressed that these assassinations and acts of violence were all reprehensible. He referred, in particular, to the attack against the trade unionist Aída Avella. He concluded by stating that violence was a structural problem of the country and that to achieve new labour relations in the country it was necessary to have an important contribution in favour of life and peace.

The Committee noted the written and oral information provided by the Government representative and the discussion which followed. The Committee recalled that the Committee of Experts insisted that the Government should take measures to remove the prohibition placed on public employees who were not employees engaged in the administration of the State to conclude collective bargaining agreements. The Committee observed with concern that many complaints of a serious nature were still outstanding and before the Committee on Freedom of Association. The Committee also noted that a draft law which was the result of a tripartite agreement would be presented to the next legislative session. It noted that the Government had invited an ILO mission in order to promote social dialogue and trade union rights. The Committee expressed the hope that, in this context, the next report from the Government would note substantial progress, in law and in practice, with regard to the application of the Convention.

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative expressed his satisfaction and that of his Government with the recognition by the Committee of Experts of the progress accomplished in his country in different domains of legislation. Progress had been made in the forming of trade union organizations without advance authorization, their right to freely organize their internal administration, their power to intervene in certain political questions and the adoption of measures to reinforce protection against anti-union discrimination. These results demonstrated the Government's will to give full effect to the ILO Conventions ratified by his country. He agreed with the opinion of the Committee of Experts when they declared that this progress bore witness to the vitality of the ILO's system of control of the application of standards and the essential contribution of tripartitism to this process. He underlined the efforts being put in place by his Government concerning the timely sending of reports on the different Conventions and it should be noted that the number of observations made by the Committee of Experts on his country has diminished from one year to the next. There are now only four observations for 17 Conventions for which reports were submitted. Colombia was also cited among the countries having communicated reports signalling important changes in the application of Conventions. The speaker recalled the important role played by the ILO in technical cooperation which has assisted in the progress on standards for his Government. Touching the observations formulated by the Committee of Experts concerning the application of Convention No. 98, especially concerning the place accorded in the legislation to the definition of public employees which determined the possibility for certain workers to present collective bargaining proposals, he indicated that the existing Constitution recognized the separation of powers and that the Congress of the Republic had the exclusive competence for fixing the conditions of workers and the conditions of work of these workers. This explained the divergence noted by the Committee. Concerning the absence of protection for union members who were civil servants, the speaker pointed out that the recent ruling of the Supreme Court was approved after the last report was sent. This ruling declared that all provisions allowing such discrimination were contrary to the Constitution. In consequence, today there was no longer any obstacle to the exercise of union activities whether it be in the public or private sector. To conclude, the speaker underlined the efforts of his Government towards consolidating institutions in all domains with the goal of improving the conditions in which work relations develop, and he reaffirmed the strong will of his Government to continue their efforts to bring his legislation into conformity with ratified Conventions.

The Workers' members stated that work in the Conference Committee often required reading between the lines to understand the context in which events were occurring in a country. They pointed out that they had read documents prepared by ICFTU and Amnesty International on Colombia concerning human rights. The Committee of Experts has encouraged cooperation between supervisory bodies and non-governmental organizations. From these documents and the organizations, one learned that, in spite of political and economic changes occurring in the country, there were still a number of serious dilemmas to be faced. It was alleged that more trade unionists were killed in Colombia than in any other country in the world. The lives of trade union officials in Colombia were in peril. As an indication of the problems, the Workers' members cited the fact that there are currently eight complaints pending before the Committee on Freedom of Association, four of which concerned very serious acts of trade union discrimination. The Report of the Committee of Experts examined anti-trade union discrimination in the public sector. The Conference Committee examined this problem first in 1989 and it was also discussed in 1991 and 1992. A direct contacts mission took place in 1991. The Government should be aware of the fact that their legislation did not conform to the Convention. They noted that certain public servants in Colombia had no immunity if they joined a trade union, and certain civil servants were denied the right to collective bargaining. The Government representative had referred to recent legislation which would have a bearing on this, and they were sure the Committee of Experts would like to see this. What the Committee of Experts said was that existing formulations of the laws allowed neither proper trade unionism nor collective bargaining to take place in various parts of the civil service. The Workers' members wished to underscore the fact that when a country ratified Convention No. 98, it committed itself to allowing civil servants the right to organize and bargain collectively. Existing laws allowed only "humble petitions" under Section 414 of the Code, which the Government maintained establish the right to collective bargaining. They believed the Employers' members would agree that "humble petitions" would not bring the national legislation into conformity with this Convention. No indication had been given that legislation would be changed on the two precise points raised by the Committee of Experts. If this was correct, the Workers' members felt that the conclusions should draw attention to the fact that existing legislation is not in conformity with Convention No. 98.

The Employers' members pointed out that the Conference Committee had dealt with Colombia on several occasions. In 1991, a direct contacts mission took place. Comparing this year's report with previous ones, it was fair to say that some change had occurred in the interim although it was not actually specified. The Workers' members had pointed out that there was a great deal of violence in Colombia, but the violence was not limited to workers and trade unions. It affected everyone. They turned to the specific problems: the absence of protection for employees who were trade union members of a mixed organization; and the denial of the right to collective bargaining for civil servants. The Committee of Experts considered that the term "public employees" was defined too broadly. Concerning the first point, the Employers' members noted that there was a deficiency in the country's legislation. The Government representative, however, had pointed out that a recent ruling handed by the Supreme Court had done away with this exclusion. To verify this, they requested that the Government representative send a copy of the new ruling to the Committee of Experts as soon as possible to allow them to assess the situation. Concerning the second point, the Committee of Experts noted that there was a discrepancy in legislation compared to the obligations of the Convention. The Presidential Directive No. 38 of 1990 still excluded too many public service employees from the right to bargain collectively. The Committee of Experts had stated that the definition of public employee needs to be narrowed down, but they had not pointed out how that could be done. This might form the terms of reference for a direct contacts mission. The Employers' members concluded by suggesting that the Conference Committee request the Government of Colombia to consider carefully the indications and recommendations of the Committee of Experts and to act on them to remove any discrepancies. They also reiterated that a copy of the new ruling of the Supreme Court which the Government representative referred to should be sent to the Committee of Experts.

The Workers' member of Norway also spoke on behalf of Denmark, Finland, Iceland and Sweden. He expressed the opinion that the case of anti-union discrimination by the State and the denial to civil servants of the right to collective bargaining were extremely grave problems. He referred to the last report of the ICFTU and noted the serious attacks against unionism including the murders of union militants. The government authorities of Colombia not only refused to respect the right of civil servants to bargain collectively with their employer, which was provided for in the Convention, but they also practiced anti-union discrimination by means of legislation and regulations which paralysed possible union activities. The speaker requested the Government representative to point out what measures it had taken to protect militant unionists who sought the right to bargain collectively and, to conclude, he called on the Government to implement the decisions of the ILO's supervisory bodies.

The Workers' member from Colombia declared that he was in total agreement with the report of the Committee of Experts. Colombian workers did not have trade union freedom and civil servants did not have the right to collectively bargain. He deplored the fact that the recommendations of this Committee were reiterated continuously and that they had become nothing but a habit. He pointed out that, when the Government claimed to have taken measures, it had in fact acted completely differently. For example, although the Constitution of 1991 guaranteed the right to strike, with the exception of essential public services, there was no legislation which guaranteed this right, and Law No. 50 prohibiting the right to strike for certain public employees continued to be applied. The speaker declared that the Government had not honoured its engagements and had not implemented the recommendations of the Committee of Experts concerning the dialogue with the social partners and did not take into account their proposals. A proposal for a labour legislation law, which was supported by a million signatures, had not been discussed by the Parliament while a proposal to privatize social security had been presented to Parliament as a priority for discussion. The speaker denounced the impunity of anti-union acts which remain the rule in his country. More than 1,500 union militants had been assassinated and almost 180 last year. He denounced the false image that the Government would like to give of the country and notably the Government's wish to cover up the realities of the situation of human rights and trade union freedom. To conclude, he asked the Committee to adopt firm conclusions.

The Government member of Venezuela declared that he was happy to note progress in the situation in Colombia concerning international labour standards. He recalled that the case of Colombia was set in the context of a great amount of violence which affected all sectors including trade unions. He considered that the solution was not simply the job of the Government, but nevertheless, there had been progress in this regard. Attesting to this was the fight against organized crime and the accords concluded with certain guerilla movements which had participated in recent elections. He believed it reasonable to hope that, with progress towards national pacification, it would become easier to respect international labour standards ratified by Colombia. Referring to the observations of the Committee of Experts, he felt that a certain legal point should be examined by them. In the legislative doctrine of work in Latin America, the limit between the right to work includes, in general terms, the right to collective bargaining. On the other hand, the administrative right to work of the civil service recognizes certain restrictions to this right. The speaker considered that the problem calls for clarification as to the distinction made, in Colombian legislation, between "public employees" and "official workers", as well as the use of the concept of "civil servants engaged in the administration of the State". This concept should be the object of profound study since it concerned a complex question and a very important current subject in Latin America.

The Workers' member from Pakistan deplored the violence that existed in Colombia and the fact that it was estimated that 180 trade unionists were killed there last year. There was a need to change this situation rapidly. The speaker pointed out that public employees constituted the bulk of the labour force in most developing countries. Countries that have ratified Conventions Nos. 87 and 98 were required to provide immunity against anti-union discrimination as well as permit the right to collective bargaining to public employees. The Government should be a model for the private sector in the area of workers' rights. Where civil servants were denied such basic rights as immunity from anti-union discrimination and collective bargaining, the private sector might follow in the same path. The speaker fully supported the request that the Government should be requested to send the new Supreme Court ruling to the Committee of Experts as soon as possible and that they should change legislation to bring it into conformity with the obligations of Convention No. 98.

Another Worker member from Colombia, after thanking the Committee of Experts for having presented the case concerning the non-respect of a certain number of workers' rights in his country, dealt with the situation of civil servants. He declared that, under the cover of the modernization of the State, more than 80,000 civil servants had lost their jobs in the last four years. This category of workers could not exercise union rights and express its demands. Collective bargaining was limited to simply presenting "humble petitions". He wished the Committee of Experts to follow up on the work it has done on these problems and to call upon the Government to take concrete political measures that would result in real change.

The Government representative recognized the positive character of the various interventions, and declared that his Government was far from trying to hide the reality of the violence (which had multiple causes) which reigns in Colombia and causes grave problems to the trade union movement. In applying constitutional legislation, the system of protection of the freedom of trade unions and human rights had been developed. This had been witnessed in the last two years by the examination of some 30,000 cases among which many concerned the protection of the right of association and the questions of work. Constitutional reforms had also been undertaken. Commissions of Human Rights had been created in the Senate and in the Chamber. Conforming to Government policy in the development of protection and the fight against impunity of crimes, 5,000 members of the national police had had their employment terminated in order to reorient this institution toward the protection of citizens. Two laws concerning education in the area of human rights had been adopted and in 1993, two projects aimed at stopping "disappearances" had been elaborated. A service of human rights had been constituted under the Administrative Department of Security, and a competent ombudsman in matters of human rights had been designated. These actions had the objective of breaking the cycle of violence and impunity. Today there was a reduction in the violence parallel to the development of the system for protection of workers. It could not be said that the Government exercised a policy of violence, even if certain agents of the State had been guilty of such acts. In any event, his Government had the principal objective of ending impunity. The budget consecrated to justice in the country had been doubled. To conclude, the speaker thanked the Government member of Venezuela for his useful proposals.

The Workers' members recognized that while violence affected everyone, its tendency in Colombia was to touch those involved in human rights issues the most. These persons were trade unionists, politicians and lawyers: they were the ones who stood up for human rights and they were affected most by violence. The Government representative maintained that progress had been made. They wished to remind the Conference Committee that the discussion had been limited to problems facing civil servants. The major discussion for Colombia concerned Convention No. 87 on freedom of association, and there was no report on that Convention this year. Presumably that would be next year, and at that time the Conference Committee would be in a better position to judge what progress had been made. They hoped, along with the Employers' members, that the new Supreme Court ruling would completely eliminate anti-union discrimination and guarantee the right to collective bargaining for civil servants in one fell swoop. It should be remembered, however, that the ruling needed to be translated into legislation. The Committee of Experts would be able to judge the efficacy of the new ruling once the necessary measures had been taken.

The Government representative of Colombia wished to point out that there was no longer an absence of protection of trade union rights for civil servants as had been mentioned by the Committee of Experts in its observations. A new ruling of the Supreme Court had been given recently, and the text would be communicated without delay to the ILO. He made it clear that additional legislative measures would not be necessary.

The Committee noted the statement provided by the Government representative and the discussions which had taken place. It recalled that in 1992, the Committee requested the Government to modify its legislation so that it would conform to the suggestions of the Committee of Experts and report on the amendments adopted. The Committee noted the comments of the Committee of Experts according to which although civil servants had the right to organize, the law did not protect them against acts of anti-union discrimination and prohibited collective bargaining. The Committee expressed the strong hope that, given the explanations of the Committee of Experts and the discussions that had taken place, the Government would take the necessary measures to guarantee this category of workers (with perhaps the sole exception of public servants engaged in the administration of the State), protection against anti-union discrimination and the right to collective bargaining on their conditions of employment, as guaranteed by Articles 1 and 4 of the Convention. The Committee requested the Government, taking account of the many complaints presented before the Committee on Freedom of Association, to reinforce the protection against acts of anti-union discrimination in both the public and private sectors. The Committee hoped that the next report of the Government would furnish detailed information on the legislative or jurisprudential evolution relative to these questions and that these would show evidence of progress leading to a full application of the Convention.

The Government representative of Colombia wished to point out that there was no longer an absence of protection of trade union rights for civil servants as had been mentioned by the Committee of Experts in its observations. A new ruling of the Supreme Court had been given recently, and the text would be communicated without delay to the ILO. He made it clear that additional legislative measures would not be necessary.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative, the Minister of Labour and Social Security, referred to the request contained in the report of the Committee of Experts in respect of this Convention. The Committee had requested that the necessary measures be taken in order to grant to those "public employees", who were not engaged in the administration of the State, with the guarantees set out in the Convention in respect of the negotiation of collective agreements. In Colombia there was a distinction made between public employees and official workers which had involved a number of petitions. He indicated that written information had been provided by the Government on the different points raised by the Committee of Experts.

The Workers' members noted that in providing the right to collective bargaining for public workers, the Convention referred to those engaged in the administration of the State as a possible exception to this right. However, they stressed that the Committee of Experts did not consider that there should be a very broad distinction made to the effect that all civil servants could be considered to be involved in administering the State. Although the Minister himself and his immediate top-level staff could be included in this category, this exception did not extend to include all public servants. They noted that that an ILO mission had reported that Presidential Directive No. 38 of 1990 confirmed the prohibition placed on unions of public employees and related collective agreements. They believed that if ILO technical assistance were given to the Government, it would be informed conclusively by the ILO that the administration of the State could not be given as wide a definition as the Government wished to maintain.

The Employers' members considered that the only question to be answered concerned the kinds of public service employees that should be included in the category of state administration. In their view, this category should include all the personnel needed to operate a secretariat, and not just the minister and his secretaries. They did not think that this should be a fixed boundary or limit, but only one of the factors to be considered when asking for ILO assistance in order to arrive at a sensible regulation of the distinction between those who may engage in collective bargaining and those who may strike.

The Workers' member of Colombia stated that in Colombia the right to bargain collectively was being infringed upon and that there were directives of the Government that result in such infringements. Decree No. 2914 of 30 December 1991, approving the budget for incomes and expenditures of state industrial and commercial enterprises and joint economy companies, states in article 18 the necessity for prior authorisation of the Superior Council of Fiscal Policy (CONFIS) in order to exceed the percentage of salary adjustment set by the national Government. Article 10 of Act No. 4 of 1992 established that all salary or benefit structures that were found to have contravened the provisions contained in this law, or in the Decrees made by the national Government, would lack all effect and as a consequence no rights would be acquired under such structures.

A Workers' member of Italy indicated that on 27 June 1992 the three Italian trade unions would hold a demonstration against the Mafia and the murder of the Italian judge Mr. Falcone. He requested the Government to provide information concerning the dozens of trade unionists and activists in the area of human rights and social justice who had been killed.

The Committee noted the information supplied by the Government from which it gathered that the Government's concept of public employees engaged in the administration of the State remained too wide. It therefore expressed the hope that the Government would comply with the suggestions of the Committee of Experts and send a full report about the amendments envisaged to change the law.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

See under Convention No. 87 the discussion which took place in the Committee on the application of Conventions Nos. 87 and 98, as follows:

A Government representative of Colombia, Minister of Labour and Social Security, stressed the improvements with regard to Convention No. 87 brought about by Act No. 50 as a result of which steps had been able to be taken to improve the situation regarding the legal personality of trade unions. It was now a matter for the labour courts to resolve any disputes or cases in this connection. The constituent Assembly had approved the registration of a number of unions. They now had the right to engage in collective bargaining and conclude collective agreements; these unions represented about a third of the workers. It was also possible to form mixed trade unions.

He raised certain expressions which were not exactly taken up in the Act, due to the short time that had been available to examine in depth the Committee of Experts' comments. The Experts stated that the election of trade union officers had to be submitted for approval by the administrative authorities and it deemed this to be a breach of Article 3 of the Convention using references to Resolutions dating from 1952, 1972 and 1979. He had the text of the 1958 Resolution with him and pointed out that it did not make any reference at all to the approval of the election of trade union officers. There was a reference to giving information about elected officials, but there was no wording as stated in the report of the Committee of Experts. Likewise, according to the Experts, new section 380(3) of the Labour Code provided for suspension for up to three years, with loss of trade union rights, of trade union officers who were responsible for the dissolution of their unions. However, he pointed out that this was not administrative suspension, but a faculty available to the Government when standards were violated. It was then possible to have recourse to the labour courts which would decide the question. He stated that the provision cited by the Experts as prohibiting trade unions from taking part in political matters had been repealed in 1990. He stressed that Colombia respected freedom of association and trade union officials had always been free to engage in politics; many were in fact members of Congress. As for the Experts' mention of new section 450 of the Labour Code, as amended in 1990, he noted that before suspension or dissolution of the legal personality of a trade union following a strike or unlawful work stoppage could take place, the matter required a decision by the labour courts. Thus new section 450(3) of the Code provides for the withdrawal or suspension of legal personality, but not by the administrative authority.

Referring to the right to strike, he was of the opinion that the constitutional procedures and the terms of the Standing Orders of the Conference permitted discussion of this question in some appropriate way within the ILO. The Committee of Experts stated that, in Colombia, strikes were prohibited not only in essential services in the strict sense of the term, but also in a wide range of public services which were not necessarily essential. It was true thet the Constitution prohibited strikes in public services, but this was because his Government believed that all public services were essential. His Government had proposed legislation in the Constituent Assembly which it considered to be in conformity with Convention No. 87. This was provided for in the national Constitution because when the authorities had to take action within their competence, they bore in mind the fact that strikes had to be related to economic matters of direct concern to workers. Mention had been made of the power vested in the Minister of Labour to permit the dismissal of all the workers in an undertaking in certain circumstances, one of which was if the strike had not been resolved by arbitration. He stated that the law of the majority should prevail in the case of a trade union. His Government also considered it important to maintain the 1968 legislation providing that there could be restrictions on a strike which affected the interests of the national economy; but even here the agreement of the Labour Chamber of the Supreme Court had to be obtained.

Referring to the Committee of Experts' comment on the prohibition of strikes, subject to administrative penalties, when a state of emergency had been declared, he stressed that it was only in such cases that such sanctions could be imposed; that is, in very special circumstances. In Colombia, there had been very serious difficulties and work stoppages - not actual strikes - which had restricted the right to work of those who did not want to take part in the stoppages designed, for example, to paralyse transport or interrupt communications. In these special cases the Government had taken action, as it was permitted under the Constitution, and the situation in Colombia necessitating such action was well known.

As regards action against trade union officers who had intervened or participated in an illegal strike, and the prohibition of work stoppages which can have subversive ends, the speaker pointed out that Article 8 of the Convention provided that in exercising the rights under the Convention, workers and employers and their respective organisations, like other persons or collectivities, had to respect the law of the land. For these reasons, and again repeating that there were imprecisions in the Experts' report, the Government representative expressed his concern about the need for a clearer definition of the right to strike and all its implications.

Referring to Convention No. 98, he stated that the Act No. 50 permitted the formation of mixed trade unions in which public service employees and private employees could both be members. There had been a great deal of legislative reform in connection with the Labour Code which had been in force for over 40 years and his Government was pressing on with reforms in order to bring the legislation into line with the Conventions in question. The Constituent Assembly, was currently meeting with a view to ensuring that new powers were vested in Congress in this connection; and new legislation was being drafted with a view to accomplishing all these reforms.

The Workers' members of the United Kingdom, while thanking the Government representative for his very detailed report, believed that he Workers, disagreed with much of what he had said. The Committee of Experts had quite rightly set out the legal formulations necessary to bring the Colombian legislation into conformity with Conventions Nos. 87 and 98. While they had to record some progress at the legislative level as a result of the adoption of Act No. 50, the present Committee and the Committee of Experts were also concerned with practice. As was noted last year, behind this case were possibly the most horrifying facts that would emerge in discussions in the present Committee: they could read out a list of prominent trade union leaders who had been killed, tortured, raped or who had disappeared, and since last year the situation had worsened. To read out the names provided by the International Confederation of Free Trade Unions and Amnesty International as well as other human rights groups, would do disservice to the many hundreds of victims whose names were unknown. The Government would say, as it did last year, that this violence against trade unionists was the work of drug dealers and criminals. This was, to some extent, true. But considerable evidence existed showing that members of the security forces had acquiesced, and had even been directly involved in some of these criminal acts. The attitude of the Government towards trade unions, with its restriction of trade union rights and detention without trial for long periods, created an atmosphere in which criminals and drug dealers had to feel that they were almost acting as government agents. Trade unionists themselves, in trying to establish recognition of basic trade union rights, were being treated as criminals in Colombia. Unionists throughout the world tried desperately to promote their causes peacefully; if the Government of Colombia was to harness the peaceful cooperation of unions, instead of repressing them, it might have better success in dealing with the criminal elements which pervaded the whole of Colombian society. Trade unionists discovered that, although massive military forces were available to break up local strikes, the same forces were mysteriously absent when union headquarters were being attacked and unionists being killed.

The Employers' members recalled that the Committee of Experts was of the view that the new legislation had led to some progress for both Conventions Nos. 87 and 98. Since the various points had been raised and discussed for a number of years, any change in a positive direction was to be welcomed. But there was still a lengthy list of continuing deficiencies which required discussion. Of the four points raised under Convention No. 87, the first two concerned the setting up and internal functioning of the trade unions. The provisions mentioned were quite clearly contrary to the Convention and were quite unnecessary and should be changed. The Government representative, referring to a large number of points, had repeatedly stated that the situation had changed, but the Employers were not clear whether all the points criticised by the Experts had been rectified. Considerable clarification was required here and they requested an exact report on where changes had taken place and what further changes were envisaged. They considered that points 3 and 4 raised under Convention No. 87 were less clear. It was a question of the often difficult distinction between trade unions and political organisations. There was no doubt that there could be no ban on political activity or political meetings, but one could distinguish between political and other organisations and it was also clear that truly political bodies were not covered by the Convention. As regarded the possibility of restricting strikes, the Employers indicated as they had in 1989 that they did not share the view of the Committee of Experts, namely that strikes could be restricted or prohibited only in public services in the strict sense of the term. Nevertheless they stated that there had to be a limit set as regarded the prohibition of strikes, which should not be too restrictive, and the situation in Colombia had to be changed on this point as well.

As for Convention No. 98, the Committee of Experts is satisfied because fines had been further increased. However, the Employers repeated that it was not necessary to specify amounts because Article 1 and 2 of the Convention referred to "adequate" protection and Article 4 recognised that measures had to be appropriate to national conditions. One further point remained outstanding, that of civil servants not being able to bargain collectively. This restriction was so extensive that it also applied to workers in commercial and industrial enterprises just because they were State-owned. The Employers believed that such workers should not be deprived of the right to bargain collectively. Since it appeared that the Government representative had stated that certain restrictions no longer existed, the Employers' members felt that his statement should be included in a detailed report so that the facts could be verified.

As there were still considerable differences, particularly concerning Convention No. 87, there was a need for rapid change and they considered that the present Committee should insist on a change in the near future in both the legislation and practice.

A Workers' member of Colombia thanked the ILO and all those who had expressed their concern and distress at the terrible situation faced by workers in Colombia. Referring to the statement made by the Government representative, he maintained that there was improper interference by the State in every aspect of the functioning of trade unions and not only in the Confederation to which he belonged. A virtual war was being waged against the trade union movement in Colombia and this arose in connection with the most recent legislation mentioned by the Committee of Experts in its report. He stated that the trade union movement had, for a long time, been making requests and calling for democratic reform of the labour legislation, but had constantly met resistance from the Government and employers. With reference to the Government representative's statement that reforms were being carried out in collaboration with the workers and employers, he observed that although the workers had hoped for proper proposals, the Government had produced reactionary provisions that were now embodied in Act No. 50 of 1990. In his opinion, the Government was trying to convince world public opinion that the amendments favoured workers whereas the legislation had really been brought into line with the requirements of the World Bank and International Monetary Fund. There had been some progress compared to 1989 and 1990 but he noted that Conventions Nos. 87 and 98 had been law in Colombia since 1976 and, despite all the legislation passed over the last fifteen years, they were still not properly applied. The Government representative had stated that strikes were not prohibited, but rather work stoppages. However, the four trade union confederations had organised a strike on 14 November 1990 aimed exclusively at defending workers' interests and this peaceful action had resulted in government measures including imprisonment for three years of those who called the strike, confiscation of trade union funds and the censorship of union radio and television. The military forces had been deployed as an intimidation measure and the Government had orchestrated a disinformation campaign alleging that the stoppage had been a failure. In concluding, he considered that the work of the Committee of Experts in this case had to be continued and suggested that a direct contacts mission be sent once again to the country with a view to establishing clearly how Act no. 50 of 1990 was going to be applied in practice.

Another Workers' member of Colombia, having listened to the Government representative's statement, informed the Committee that the situation of Colombian workers could not be worse. The new labour legislation not only breached the fundamental principles of the ILO, but was aimed at destroying the Colombian trade union movement. He based this remark on the following: rather than providing for the "elimination" of obstacles to the formation of unions, the Act allowed precarious employment contracts so that it was impossible for workers to join a union because of their temporary employment situation. Workers knew that if they joined a union, they ran the risk that their contracts would not be renewed. With this institutionalisation of temporary employment (the law had previously prohibited contracts of less than one year) it was impossible in practice for workers to belong to unions and to conclude collective agreements. The new Act also introduced changes concerning strike formalities and he pointed out that it was now very difficult for workers to vote in favour of a strike because the decision had to be taken at an enterprise-level meeting which could be attended by workers who were not members of the union. He added that the Government was propagating the fallacious idea that it did not prohibit strikes, only stoppages. but the stoppage of 14 November 1990, already referred, to was precisely a strike to protest against the introduction of this new Act on which the workers had not at all been consulted. They had been allowed to attend meetings of the committees discussing the draft provisions but had not been able to express their views, even though other parties had been heard. The stoppage itself had not been subversive and the confederations involved had publicly appealed to guerilla groups not to intervene in any way; nevertheless, it was declared illegal before it started and disciplinary action was taken throughout Colombia. Another deterioration introduced by the new Act was the lowering of the minimum age for admission to employment from 14 to 12 years, which could not be called progress. He called for an ILO mission to visit Colombia to assess the real situation. Lastly, he referred to a report of the Committee on Freedom of Association which called on the authorities to take steps to ensure the reinstatement of a group of workers who had been unjustifiably dismissed in the textiles sector. To date there had been no information from the Government about any reinstatements and this showed that, while the Government said one thing in order to impress public opinion, what was actually occurring in the country was quite different.

Another Workers' member of Colombia pointed out that this decade had been one of the most difficult in the history of Colombian workers. The Government representative had not referred correctly to the facts or to the policies of structural adjustment which were, in reality, not decided in Colombia, but by the World Bank and the International Monetary Fund in Washington. He believed that this neo-liberalism imposed by a cruel developmental policy would not hesitate in destroying the democratic basis of the union movement in the interests of implementing a new economic order in Latin America. It was no accident that today's leaders in Latin America had received instructions on this new economic order which was detrimental to social justice. In Colombia, these structural and economic policies were affecting the poorest and most marginalised sectors of the population. The new Act merely complied with these measures; the future was therefore bleak. He stressed that efforts had to be continued to combat the repression of the interests of Colombian workers, which were the interests of Latin American, Third World and all workers in general.

The Government representative of Colombia, referring to the statements made by members of the Colombian trade union confederations, supported their proposal that an ILO mission go to Colombia very shortly to study on the spot the various issues raised here. In that way his Government could help the ILO learn more about the situation in the country. Referring to the Workers' members statement, he firstly rejected most strongly the remark that the agents of terrorism and drug traffickers were acting virtually as government agents. Their acts had to be condemned, and none of them were in any way attributable to or associated with the Government. In carrying out its mandate as elected representatives of the people, his Government had done everything possible to combat these subversive acts. Secondly, he rejected the insinuation that a foreign power should interfere in the internal affairs of a country. There had been interventions which were already forgotten in Latin America. Relations with the United States were excellent. He added that he had not broached the problem of the long list of trade unionists who had been subject to attack in the country because that was not covered by the report of the Committee of Experts. He acknowledged, to his distress, that it was not only trade unionists who were the victims but also presidential candidates, judges, magistrates, police officers, soldiers, entrepreneurs and innocent citizens. All Colombians were concerned over the painful situation in the country and unionists knew, better than anyone else, that it was necessary to put a stop to these subversive attacks. Referring to the comments of the Employers' members, the Government representative stated that he had taken careful note and that the Government would be taking the necessary steps to remedy the situation. He repeated for clarity that the new Act had abolished suspension by administrative authority of the legal personality of trade unions; everything connected with withdrawal or suspension of legal personality was now a matter for the courts. In addition, he repeated that section 450 of the new Act had been misquoted. Lastly, he recalled his wish that the ILO carefully study all aspects of the right to strike and he repeated that a mission should visit the country to note the progress achieved, progress which had been recognised to some extent by the trade union leaders who had spoken earlier.

The Workers' members stated that to arrive at a better situation, two factors were needed: firstly legislation in full conformity with the principles and obligations of the Conventions, and secondly the practical application of their principles and obligations. On the first point the report of the Committee of Experts was clear. Although it noted certain progress with satisfaction, it recalled a series of major questions which had not been resolved. As for the practical application the Committee had heard the interventions of the Workers' members. It was also known that the Committee on Freedom of Association was seized of several complaints and had called on the Government to take measures to end the violence affecting a great number of trade unionists and to strengthen the protection of workers and trade union leaders against acts of anti-union discrimination. On all these points, the statement of the Government representative was regrettable and worrying. Regrettable in form, because although there had been special paragraphs on this case for two consecutive years, there was no written reply to the comments made and only an oral statement which could not be examined in depth. Worrying in content, because the Government was well aware of the views of the Committee of Experts and the present Committee, but only gave assurances of one day arriving at a better situation. They believed that the present Committee should insist on the Government taking measures not only to reply to the questions raised, but to change the legislation to bring it into full conformity with the Conventions. The Workers' members wanted to continue dialogue but the maximum pressure had to be brought to bear for this. They had initially considered proposing that this case be mentioned in the present Committee's report as one of continued failure to implement, but the Experts had noted some progress. They stressed that they would have proposed for the third time a special paragraph for Colombia, but in view of the fact that the Government had asked for a direct contacts mission and in the hope that this mission would take place shortly they would not do so.

The Employers' members noted from the discussion that the situation in Colombia was worrying and had gone beyond the scope of the Conventions. Nevertheless, as concerned the questions to be dealt with here, some things were very clear and had to be changed. They repeated that every necessary step should be taken towards this. As for the suggestion of a direct contacts mission, they recalled that such a mission had taken place in 1988. This was not always the way to settle everything, but they assumed that goodwill was present. Last year, the present Committee's conclusions reflected the Government's request for technical assistance from the ILO. This could be done once again, but they expressed the wish that the mission take place as soon as possible and that corresponding results be achieved.

The Employers' member of Algeria added his deep concern over the situation which was seriously deteriorating in Colombia as regarded respect for the most fundamental standards of the ILO, namely Conventions Nos. 87, 98 and those linked to non-discrimination. The case being discussed here was not new to the present Committee's members and he wished to stress that both workers' and employers' organisations would be able to enjoy the democratic rights flowing from Conventions Nos. 87 and 98. He had seen in his own country the ease with which the struggle for democratic rights could be transformed by the powers that be into a "pseudo-subversive" struggle. He agreed with the Workers' members that, morally, the Committee had to maintain maximum pressure despite the progress noted in Colombia. The direct contacts mission should take place, but he did not wish to see the case being discussed over the years to come. The situation was serious and there had to be respect for the responsibilities and principles accepted by virtue of the Constitution of the ILO.

The Committee noted the information supplied by the Government as well as the discussion that had taken place and submitted them to the Committee of Experts. It took note of the request addressed to the ILO regarding the sending of a direct contacts mission and hoped that it would take place very shortly. The Committee noted with interest certain legislative improvements which had taken place in the application of Conventions Nos. 87 and 98 since last year. However, in view of the deep concern which it had expressed for a number of years in connection with the numerous and serious deficiencies that continued to exist in the law and in practice as regarded the application of the Conventions, the Committee expressed the firm hope that the Government would be in a position to communicate to the supervisory bodies of the ILO as rapidly as possible specific information on the measures taken or envisaged so as to bring the legislation and practice into full conformity with the requirements of these Conventions. In view of the seriousness of the trade union situation which was confirmed by the Committee on Freedom of Association when it examined pending cases, the Committee insisted that the Government indicate that real and substantial progress had been made in its next report.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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Article 4 of the Convention. Promotion of collective bargaining. Mediation, conciliation and arbitration. In its previous comment, the Committee noted the agreement between the social partners on the need to significantly facilitate the stages of the arbitration procedure and requested the Government to: (i) take measures, including legislative measures, in this respect; and (ii) strengthen the mechanisms for the training of arbitrators.

The Committee notes the Government’s indication that: (i) Decree No. 1072 of 2015 and Decree No. 17 of 2016 have made the procedures to set up arbitration tribunals more flexible; and (ii) the use of technology has made it possible to make arbitration procedures more flexible, in particular allowing the virtual selection and discovery of cases by arbitrators. The Committee notes that the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT) continue to denounce: (i) the excessive slowness of the arbitration process; (ii) the procedure for the appointment of arbitrators; (iii) the inadequacies of Decree No. 17 of 2016 which, among other points, defines excessively restrictively the powers of arbitrators and does not require specific training or experience of collective disputes; and (iv) the suspensive effect of appeals to set aside arbitration awards, which makes it possible to delay their effective application for years. Finally, the Committee notes the observations of the National Employers’ Association of Colombia (ANDI), referring to statistics on referrals to arbitration tribunals, which indicate that in 2022 there were 176 referrals, of which 157 were addressed and resulted in 133 awards. The ANDI indicates that these figures represent an improvement in relation to 2014.

While taking note of the information provided regarding timelines, the Committee observes that the organizations continue to call for a series of reforms to make the arbitration process more flexible, strengthen the capacity of arbitrators and ensure the implementation of awards. The Committee also observes that: (i) a process of legislative reform is currently being undertaken which addresses the issue of arbitration in collective labour disputes; and (ii) it has not been provided with information on the strengthening of mediation and conciliation procedures for collective labour disputes.

Recalling once again the importance for the effective promotion of collective bargaining of the existence of effective machinery for the voluntary settlement of collective disputes, the Committee: (i) requests the Government to engage in substantive discussions with the social partners with a view to ensuring that the current labour law reform improves the efficiency of mediation, conciliation and arbitration procedures for collective labour relations; and (ii) once again invites the Government to strengthen the mechanisms for the training of arbitrators. The Committee requests the Government to provide information in this regard.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes: (i) the observations of the National Union of Workers in Enterprises, Operators, Subcontractors of Services and other Activities in the Oil, Petrochemical and Allied Industries (SINDISPETROL), received on 9 June 2023; (ii) the joint observations of the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT), received on 1 September 2023; and (iii) the observations of the National Employers Association of Colombia (ANDI), received on 1 September 2023. All of these observations refer to matters addressed by the Committee in the present comment.

Legislative reform. The Committee notes the Government’s indication that a process of legislative reform is currently being undertaken, one of the objectives of which is to ensure the full application of ratified ILO Conventions. The Committee notes the communication by the Government of the contents of the draft reform that was submitted to the Congress of the Republic on 24 August 2023. The Committee notes that the draft reform follows up on a first draft submitted to the Congress of the Republic in March 2023 and shelved in July 2023, on which the Office had made technical comments. The Committee refers first to the provisions of the draft reform that are related to the points raised in its previous comments on the application of the Convention, before examining other relevant aspects of the draft reform.

Articles 1 and 2 of the Convention. Adequate protection against anti-union discrimination and interference. In its previous comment, the Committee urged the Government, after consulting the social partners, to take the necessary measures, including through laws and regulations, to revise the procedures for the examination of administrative labour disputes in relation to freedom of association, on the one hand, and the judicial procedures concerning acts of anti-union discrimination and interference, on the other.

The Committee notes the information provided by the Government on the number of administrative disputes dealt with by the Ministry of Labour between 2018 and 2023, indicating that 518 disputes were filed, of which 195 are still active and 323 have been finalized. The Committee notes that the Government has also provided information on the number of administrative labour disputes dealt with by the various special offices and regional departments of the Ministry of Labour.

The Committee further notes the information provided by the Government concerning the investigations carried out under section 200 of the Penal Code, which the Committee is examining in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee also notes that the trade union confederations: (i) denounce the fact that the measures adopted by the Government to accelerate judicial and administrative procedures relating to protection against anti-union discrimination are inadequate and that there is a high incidence of impunity; (ii) reiterate that the procedure under section 354 of the Substantive Labour Code respecting administrative labour disputes is excessively slow in practice; and (iii) allege that only 2 per cent of the administrative disputes lodged between 2018 and 2020 in relation to freedom of association resulted in the application of sanctions.

The Committee notes the various elements provided by the Government and the trade union confederations. The Committee observes, on the one hand, that the trade union confederations maintain their allegations concerning the excessive duration of procedures to deal with administrative labour disputes by the labour administration and, on the other, that the Government has not provided specific data on the cases of anti-union discrimination dealt with by the labour justice system.

However, the Committee observes that the draft legislative reform submitted to the Congress of the Republic on 24 August 2023 contains various provisions to broaden and strengthen protection against anti-union discrimination. In this regard, the Committee notes in particular that: (i) the proposals for the revision of sections 66 and 354 of the Substantive Labour Code establish specific protection for all workers, whether or not they are protected by trade union rights, against acts of anti-union discrimination, and provide for the reversal of the burden of proof in the event of allegations of discrimination and prohibit dismissal on discriminatory grounds; and (ii) section 66 of the draft reform provides for the establishment of a summary procedure for the protection of trade union rights in labour courts, including a shorter time frame and the possibility of ordering precautionary measures. The Committee notes these provisions with interest as they seek to address its previous comments on the need to revise judicial procedures in relation to acts of anti-union discrimination and interference to make them more effective.

The Committee hopes that, once it has been adopted, the current draft legislative reform will take into account its comments on the need to offer an effective and rapid judicial response to all acts of anti-union discrimination and interference. The Committee also requests the Government to take the necessary measures to make the procedures more effective for dealing with administrative labour disputes relating to anti-union practices. The Committee requests the Government to provide information on the progress achieved in this respect and recalls that it may avail itself of ILO technical assistance.

Articles 2 and 4. Collective accords with non-unionized workers. In its previous comments, the Committee urged the Government to take the necessary measures to ensure that the conclusion of collective accords (pactos colectivos) with non-unionized workers is only possible in the absence of trade union organizations. The Committee notes the Government’s indication that the draft labour reform that is currently before the legislative body seeks to amend section 481 of the Substantive Labour Code and prohibit the conclusion of collective accords when unions are present at any level. The Government indicates that it has taken into account the views received from the Supreme Court of Justice, the ILO supervisory bodies, the Organisation for Economic Co-operation and Development Employment, Labour and Social Affairs Committee, the Inter-American Commission on Human Rights Special Rapporteur on economic, social, cultural and environmental rights, the trade union confederations and employers’ organizations, as well as the experiences of comparative labour reform in Spain, Mexico and Chile in the context of the Tripartite Reform Subcommission.

The Committee also notes the Government’s indication that: between 1 July 2014 and 30 April 2023, a total of 1,626 collective agreements were concluded (signed with trade unions) and 4,149 collective accords (signed with non-unionized workers); including 73 collective agreements and 469 collective accords concluded in 2021, 470 collective accords and 232 collective agreements in 2022, and 106 collective accords and 56 collective agreements adopted between January and April 2023. In this regard, the Committee notes the contrasting figures provided by the ANDI, according to which, between 2015 and 2022, an annual average of 415 collective agreements and 99 collective accords were concluded, with 2022 seeing the highest number of agreements concluded (476).

The Committee further notes that: (i) the trade union confederations emphasize the need to eliminate the option of negotiating collective accords with non-unionized workers, as in practice the co-existence of collective accords and collective agreements gives rise to negative effects on collective bargaining, as emphasized by the Supreme Court of Justice in ruling SL-1309 of 2022; and (ii) the ANDI affirms that accords between non-unionized workers and the employer cannot be used to prevent union membership, or to create conditions that discriminate against workers who are members of trade unions, and that collective accords are one expression of freedom of association.

The Committee observes with interest that the draft amendment to section 481 of the Substantive Labour Code takes into account its request that the conclusion of collective accords with non-unionized workers should only be possible in the absence of trade unions. Recalling that the Convention recognizes in Article 4 as the parties to collective bargaining, on the one hand, employers or their organizations and, on the other, workers’ organizations, the Committee hopes that the reform, once adopted, will take fully into account its longstanding observations concerning collective accords.

Article 4. Personal scope of collective bargaining. Apprentices. In its previous comment, the Committee urged 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 the draft labour reform seeks to amend section 81 of the Substantive Labour Code so that an apprenticeship contract is a labour contract, under which all labour rights are guaranteed, including remuneration. The Committee notes that the trade union confederations: (i) recognize the Government’s intention to convert apprenticeship contracts into labour contracts in the draft labour reform; and (ii) indicate that section 30 of Act No. 789 of 2002 establishes the prohibition on maintenance support (the term for the remuneration received by apprentices) being regulated through collective agreements or contracts or arbitration awards issued in the context of collective bargaining. The Committee notes with interest the proposed changes to the apprenticeship contract indicated in the draft labour reform, which assume that apprentices are governed by the various provisions of the Substantive Labour Code, including those respecting collective bargaining. The Committee also observes that, since it made its previous comment, the Quality Apprenticeships Recommendation, 2023 (No. 208), has been adopted, Paragraph 16(g) of which indicates that States should take measures to ensure that apprentices are afforded freedom of association and the effective recognition of the right to collective bargaining. The Committee hopes that the reform, once it has been adopted, will take fully into account its longstanding observations concerning the right of apprentices to collective bargaining, including on their remuneration. The Committee requests the Government to provide information in this regard.

Subjects covered by collective bargaining. Pensions. The Committee notes the observations of SINDISPETROL concerning the amendment of Article 48 of the Constitution of Colombia by Legislative Act No. 1 of 2005, the purpose of which was to extend and consolidate the General Pension System and to phase out special company pension schemes created by collective agreement. The Committee recalls that, in the same way as the Committee on Freedom of Association in Case No. 2434, it has on various occasions expressed its views concerning the impact of that reform on the application of the present Convention and on the Collective Bargaining Convention, 1981 (No. 154).

In this respect, the Committee recalls that in its comments on these two Conventions, it: (i) noted the respect for the acquired rights of workers who fully met the conditions for conventional retirement pensions on 31 July 2010, and asked the Government to clarify whether the trade unions which signed collective agreements prior to 31 July 2010 could conclude agreements containing provisions to take account of the situation of workers who only partially met the conditions for access to pension under the collective agreement, in particular if the contributions paid were higher than those under the current scheme; and (ii) requested information on the application in practice of the possibility to conclude collective agreements and, within the context of the General Pensions System, supplementary pension benefits. The Committee notes the Government’s indication that: (i) under the case law of the Constitutional Court relating to Legislative Act No. 1 of 2005, it is not possible to conclude agreements to take account of the situation of workers who only partially met the conditions for access to pension under the collective agreement; (ii) it has no information on collective agreements containing clauses relating to supplementary pension benefits; and (iii) the applicable law does, however, provide that collective agreements may envisage supplementary pension benefits, in view of the legal authorization contained in Act No. 100 of 1993. The Committee also notes the view of the trade union confederations that the constitutional prohibition set out in Legislative Act No. 1 of 2005 does not prevent the improvement of statutory benefits through supplementary benefits. Further, the Committee notes the comments provided by ANDI reaffirming that Legislative Act No. 1 of 2005 is in line with the Convention, in both its wording and its spirit. The Committee notes the different views expressed in this regard. Concerning the situation of workers who only partially met the conditions for access to pension under their company collective agreement on 31 July 2010, stressing the importance of respecting as far as possible the commitments made through collective agreements, the Committee requests the Government to indicate precisely the situation and destination of employer and employee pension contributions paid under collective agreements but which have not subsequently given rise to the allocation of company retirement pensions, particularly in cases where the contributions paid were higher than those under the current General Pension System.The Committee alsoonce again requests the Government to: (i) provide detailed information on collective agreements which in practice provide for supplementary pension benefits within the parameters of the General Pensions System and in accordance with its provisions; and (ii) inform the social partners of this possibility when promoting collective bargaining.

Promotion of collective bargaining in the public sector. The Committee notes with satisfaction the conclusion on 23 June 2023 of a new State Agreement with 35 trade unions benefiting around 1,300,000 public sector workers. The Committee notes the observations of the trade union confederations in this respect, which it is examining in the context of its comments on Convention No. 154.

Promotion of collective bargaining in the private sector. In its previous comments, noting the very low level of coverage of collective bargaining in the private sector, the Committee requested the Government to: (i) take measures, including legislative measures, for the effective promotion of collective bargaining in the private sector, especially at levels higher than the enterprise level; and (ii) provide detailed information on the coverage rate of collective bargaining in the private sector.

The Committee notes the Government’s indication that the draft labour reform seeks to add a new section to the Substantive Labour Code (section 467) to regulate collective agreements at the level of the branch or sector of activity, enterprise groups, the enterprise or any other level that the parties consider appropriate. The Committee also notes that the trade union confederations welcome this proposal. The Committee further notes the indication by ANDI that, according to studies by the Centre for Social and Labour Studies: (i) between 2006 and 2021, there was an annual increase in collective bargaining prior to the pandemic in 2020; (ii) in 2022, a total of 476 agreements were signed by enterprises and unions, which represents an increase on previous years, and more specifically in relation to 2014, when 328 agreements were concluded; and (iii) between 2015 and 2021, some 81 per cent of collective agreements were concluded in private sector enterprises.

The Committee notes these various elements, while observing that it has not been provided with information on developments in the coverage rate of collective bargaining in the private sector. The Committee recalls that in its previous comment it emphasized the importance of action to facilitate collective bargaining at levels higher than the enterprise level in a context in which: (i) collective bargaining at the sectoral level, in contrast with enterprise bargaining, is not covered by a specific legislative framework and is almost non-existent in practice (with the exception of the banana sector in Urabá); and (ii) workers in small enterprises may have difficulty in gaining access to enterprise-level collective bargaining as they do not have enterprise unions, for the establishment of which a minimum of 25 members is required. In this context, the Committee notes with interest the inclusion of provisions in the draft labour reform intended to promote collective bargaining at all levels and to establish a legal framework for sectoral collective bargaining. The Committee hopes that the reform, once it has been adopted, will take fully into account its longstanding comments on the need for effective measures to promote collective bargaining, especially at levels higher than the enterprise level. The Committee also requests the Government to provide information on developments in the coverage rate of collective bargaining in the private sector.

Settlement of disputes. The Committee notes the Government’s indication that 25 cases were referred in 2022 to the Committee for the Handling of Conflicts referred to the ILO (CETCOIT), of which: (i) 22 cases are still pending; (ii) one case was closed with an agreement being reached; and (iii) two cases have been closed without an agreement being reached. The Government indicates that in 2023, the CETCOIT has received eight new cases approved by the Subcommittee for the Analysis of Cases and five further cases were carried forward as a follow-up to previous cases. The Government, as well as the trade union confederations and the ANDI, refer to the resignation of the CETCOIT facilitator at the end of 2022. The Government indicates that there is already a promising application that meets the required profile, the appointment of whom is pending. The Committee hopes that the appointment of the CETCOIT facilitator will take effect as soon as possible and that the pending cases will be examined without delay. The Committee requests the Government to continue providing information on this subject.

Legislative reform. Additional aspects of the draft legislation. In addition to welcoming, as indicated in the paragraphs above, the various provisions of the draft legislation that address a series of specific comments that the Committee has been making for many years, the Committee also notes with interest other provisions aimed at putting an end to imbalances in collective labour relations emphasized repeatedly by the social partners, the resolution of which would facilitate the effective application of the Convention. The Committee notes in particular that: (i) the provisions of the draft legislation which envisage the broadening and strengthening of protection against anti-union discrimination, especially in the case of workers not covered by trade union protection, are accompanied by others prohibiting trade union practices intended to abusively extend the personal or temporal scope of trade union protection (new subsections (d) and (e) of section 379 of the Substantive Labour Code); and (ii) it is planned to extend to the private sector the system of bargaining unity (the participation of several unions in a single negotiation in proportion to their level of representativity), which already exists in the public sector to channel and organize collective bargaining in a context of trade union pluralism (section 76 of the draft legislation).

The Committee refers to its comments on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the provisions of the draft legislation that are directly related to the content of that Convention.

Draft legislation and tripartite consultation. While noting the information provided by the Government on the dialogue pursued with the social partners on the current draft legislative reform, and the observations of the trade union confederations welcoming the content of the current draft legislative reform, the Committee notes that the ANDI alleges an absence of genuine consultations on the contents of the two Bills submitted to the Congress by the Government in March (a Bill which was eventually shelved in July 2023) and August 2023. The Committee recalls the need for all draft legislation which affects the interests of employers’ and workers’ organizations and their members to be subject to full consultation with them and emphasizes the special importance of such consultations for draft legislation respecting collective labour relations. The Committee therefore hopes that the Government will take all the necessary measures to ensure the full consultation of representative social partners on the draft legislative reform to ensure that their legitimate interests and concerns are duly taken into consideration. The Committee requests the Government to provide information on this subject.

The Committee trusts that, taking duly into account the indications provided in the previous paragraph on tripartite consultation, the legislative reform process will make it possible to address the comments that it has been making for a long time in relation to the application of the Convention. The Committee recalls the availability of the Office to provide any assistance that may be considered relevant in this respect.

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

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

In its previous comment, the Committee noted the criticisms of the trade union confederations concerning the excessive slowness and deficiencies of the arbitration system in relation to collective bargaining and the Government’s indication that it was examining the possibility of a legislative amendment to overcome the difficulties that had been observed in the operation of the procedure. The Committee therefore requested the Government to engage in discussions with the social partners to improve the efficiency of mediation, conciliation and arbitration procedures in relation to collective labour relations.

The Committee notes that, after recalling the legislative framework applicable to arbitration procedures, the Government indicates that: (i) a series of initiatives have been taken to facilitate the various administrative processes of the procedure, and particularly the increased use of information technologies and virtual platforms; (ii) in 2019, the Ministry of Labour received 171 requests to set up arbitration tribunals and convened 87 tribunals over the same period; (iii) during 2020, it received 80 requests and convened 69 arbitration tribunals; and (iv) between 1 January and 26 August 2021, it received 120 requests and convened 68 tribunals.

The Committee notes that the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT) reiterate their criticism of the procedure, and denounce in particular: (i) its excessive slowness and the various possibilities that exist throughout the process for further delays; (ii) the procedure for the appointment of the arbitrators, which they indicate is unfavourable to workers; (iii) the inadequacies of Decree No. 17 of 2016 which, among other criticisms, defines excessively restrictively the powers of arbitrators and does not require specific training or experience of collective disputes; and (iii) the suspensive effect of appeals to set aside arbitration awards, which makes it possible to delay their effective application for years. Finally, the trade union confederations indicate that arbitration tribunals to resolve collective disputes should be voluntary and convened with the agreement of both parties.

The Committee finally notes the observations of the National Employers’ Association of Colombia (ANDI), which indicates that, although arbitration tribunals have various disadvantages in practice associated with malpractices and the operational limitations of the public institutions involved in their operation, they are nevertheless a mechanism for the protection of the collective rights of workers. The ANDI adds that the list of arbitrators drawn up by the Supreme Court of Justice includes lawyers, who are often close to trade unions. The Committee notes that the ANDI goes on to identify a series of operational difficulties in the process: (i) the delays in establishing arbitration tribunals; (ii) the lack of requirements for the professional competence of arbitrators; (iii) the withdrawal of claims and the commencement of a new collective dispute by trade unions, which has the effect of prolonging indefinitely the special protection of workers against dismissal; (iv) the very long duration of the arbitration process; and (v) the great length of the process for setting aside arbitration awards in the event of appeals. The Committee finally notes that the ANDI proposes, through tripartite social dialogue and with ILO support, the development of a mechanism for the training of arbitrators clearly focused on the resolution of disputes.

Recalling once again the importance for the effective promotion of collective bargaining of the existence of effective machinery for the voluntary settlement of collective disputes and observing that both workers’ organizations and employers’ organizations are calling for a series of modifications in this respect, particularly in relation to the need to make the various stages of the process significantly more flexible, the Committee: (i) requests the Government to engage in discussions with the social partners with a view to improving the efficiency of mediation, conciliation and arbitration procedures in relation to collective labour relations, including through legislative and regulatory reforms; and (ii) invites the Government to strengthen the mechanisms for the training of arbitrators. The Committee requests the Government to provide information in this regard and reminds it that it can avail itself of the technical assistance of the Office.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the joint observations of the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT) received on 1 September 2021. The Committee notes that these observations relate to matters examined by the Committee in its comments, as well as allegations of violations of the Convention in practice. The Committee also notes the allegations of anti-union discrimination contained in the observations of the International Trade Union Confederation relating to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), received on 1 September 2021, as well as the Government’s comments in this regard.

The Committee also notes the observations of the National Employers’ Association of Colombia (ANDI), transmitted by the International Organisation of Employers (IOE) on 1 September 2021, which refer to matters raised in the Committee’s previous direct request relating to this Convention and, in relation to the matters examined in the present observation, refer to its 2020 observations.

Articles 1 and 2 of the Convention. Adequate protection against anti-union discrimination and interference. In its previous comments, having noted the slowness of the various administrative and judicial mechanisms for protection against anti-union discrimination and the recurrent criticisms by the unions concerning their lack of effectiveness, the Committee requested the Government, in consultation with the social partners, to launch a comprehensive examination of these mechanisms with a view to the adoption of the necessary measures to ensure the rapid imposition of effective sanctions in the event of anti-union acts. The Committee notes the Government’s indication that, in the context of the national inspection strategy, the Department of Territorial Inspection, Supervision, Control and Management formulates an annual strategic plan which includes within its priorities enterprises which have registered collective accords and contracts.

The Committee notes that the Government also refers to the administrative investigations undertaken by the Ministry of Labour into anti-union discrimination, in relation to which it provides the following statistics: (i) in 2020, there were 351 administrative labour disputes relating to complaints of acts against freedom of association and collective bargaining, of which 83 gave rise to a decision (of which 51 were given effect); (ii) between 1 January and 15 June 2021, there were 92 administrative labour disputes, of which 13 gave rise to a decision (of which four have already been given effect). The Committee notes that the Government also provides information on the general activities of the labour inspectorate, including detailed descriptions of the measures adopted by the labour inspectorate during the health emergency resulting from the COVID-19 pandemic, on inspection procedures relating to penalties and the collection of fines and on the frequent training courses provided to labour inspectors.

The Committee further notes the information provided by the Government on the investigations undertaken under section 200 of the Penal Code, which criminalizes violations of the rights of association and assembly, subjects that have been examined by the Committee in recent years within the context of Convention No. 87 in relation to acts of anti-union violence. The Committee notes the Government’s indication that: (i) the Office of the National Public Prosecutor received a total of 90 complaints during the course of 2020, which was clearly lower than in previous years, probably, as emphasized by the Government, due to suspensions of work as a result of the COVID-19 pandemic; (ii) in one case, the issue was the subject of conciliation; in five cases the case was set aside due to related offences, or in other words the Public Prosecutor decided to continue the investigation under other criminal charges; 29 cases were set aside, either because there was no evidence of a crime or the complainant was not legitimate; of the 90 cases, 53 are still active (48 at the pre-trial stage and five under investigation). The Committee notes the Government’s further indication that the Ministry of Labour and the Office of the National Public Prosecutor have created an elite group with a view to promoting the investigation of anti-union offences.

The Committee also notes that the trade union confederations reiterate their denunciation of the ineffectiveness of the various administrative and judicial protection mechanisms against anti-union discrimination. With reference to administrative labour disputes, the confederations indicate that: (i) the procedure envisaged in section 354 of the Substantive Labour Code is not expeditious and in practice is excessively slow; (ii) on the basis of the statistics provided by the Government, only 11.5 per cent of the administrative labour disputes registered in 2020 and 2021 have so far resulted in a decision, without taking into account the possibility of appeals in those cases; the preliminary verification stage may last four or five years and many disputes from previous years have still not been resolved. The Committee notes that, in relation to the investigations by the Office of the National Public Prosecutor into complaints of violations of section 200 of the Penal Code, the trade union confederations indicate that: (i) following ten years of the labour action plan, in the context of which section 200 was amended, there have still been no investigations or sanctions imposed by the Office of the National Public Prosecutor; (ii) in addition to the consequences of the COVID-19 pandemic, the reduction in 2020 in the number of complaints of violations of section 200 is due to the loss of credibility of the mechanism, which suffers in particular from very long delays. The Committee finally notes that the trade union confederations once again denounce the absence of an expeditious judicial mechanism for protection against acts of interference and anti-union discrimination (with the exception of the special procedure for lifting trade union protection). Providing information on a series of specific cases, they indicate in this respect that: (i) unions only have access to ordinary labour courts through procedures that often take longer than four or five years, which makes the mechanism inoperative for the restoration of rights; and (ii) in the majority of cases, the courts find that appeals for constitutional protection, which are the most expeditious, are not valid to protect freedom of association, as there are other means of defence, such as the ordinary labour courts and the administrative penalty procedure of the Ministry of Labour.

The Committee notes the various elements provided by the Government and the unions. The Committee observes in this respect that: (i) the available data shows that the examination of administrative labour disputes in relation to freedom of association often takes a very long time; (ii) the Government has not provided information on cases in which criminal penalties have been handed down for violations of section 200 of the Penal Code, despite the high number of criminal complaints lodged since 2011; and (iii) the Government has still not expressed a view on the effectiveness of cases brought before labour tribunals. In this context, the Committee regrets that the Government has not provided information on the preparation of a comprehensive examination of the existing protection mechanisms against anti-union discrimination in consultation with the social partners, despite the Committee making this request on several occasions since 2016, and the request to the Government made by the Committee on Freedom of Association several times (Case No. 3061, 381st Report, March 2017, and Case No. 3150, 387th Report, October 2018). In light of the above, recalling the fundamental importance of protection against anti-union discrimination for the effective exercise of freedom of association, the Committee urges the Government, after consulting the social partners, to take the necessary measures, including through laws and regulations, to revise the procedures for the examination of administrative labour disputes in relation to freedom of association, on the one hand, and the judicial procedures concerning acts of anti-union discrimination and interference, on the other, in order to ensure that both are examined promptly and effectively. The Committee requests the Government to provide information on the progress made in this regard and recalls that it may avail itself of the technical assistance of the Office.

Articles 2 and 4. Collective accords with non-unionized workers. The Committee recalls that it has been requesting the Government since 2003 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. The Committee notes that the Government reiterates its position, in line with that of the ANDI, that: (i) collective accords with non-unionized workers are a form of social dialogue and collective bargaining recognized and regulated by the law and the case law of the Constitutional Court; and (ii) within this framework, collective accords can only be concluded when there is no union in the enterprise representing over one-third of the workers and the conditions negotiated in collective accords and agreements must be the same to prevent anti-union discrimination and any breach of the principle of equality. The Committee notes that the Government also indicates that the undue use of collective accords is being closely monitored by the competent authorities and penalized where necessary, and that their impact on association in unions is under examination in accordance with the considerations of the Organisation for Economic Co-operation and Development (OECD), the United States and Canada. The Government indicates in this regard that: (i) the labour inspection services carried out 23 planned inspections in 2020 of enterprises focussing on the use of collective accords; (ii) on 15 June 2021, the territorial labour inspection departments were examining 62 cases of the undue use of collective accords; (iii) through the Special Investigation Unit, 11 claims were being examined between January 2020 and 15 June 2021 relating to the undue use of collective accords; and (iv) as a result of the action described above, the number of collective accords concluded has decreased significantly, from 253 deposited in 2016 to 73 in 2020.

The Committee also notes that the national union confederations reiterate their previous allegations in their observations concerning the anti-union impact of collective accords, even in cases where the benefits of collective accords, which apply to non-unionised workers, are not more favourable than those agreed in the corresponding collective agreements. The trade union confederations also denounce: (i) the practice of first concluding a collective accord with non-unionized workers so as to then impose during the negotiation of the collective agreement a ceiling on benefits that cannot be improved upon, which removes any relevance from the negotiations undertaken by the union, thereby acting as a powerful disincentive to trade union membership; (ii) the supervision of the Ministry of Labour in relation to the unlawful nature of collective accords is biased and ineffective, as it focuses solely on verification of whether the content of collective accords is more favourable than that of collective agreements, without examining the common practice described in the previous point nor the other anti-union strategies involved in the conclusion of collective accords; and (iii) the lower numbers of collective accords deposited in 2020 is probably the consequence of the COVID-19 pandemic, which also resulted in fewer collective agreements being concluded that year.

While noting the information provided by the Government on the action taken to control the use of collective accords on the basis of the current legislation, the Committee regrets to note that there has been no progress in taking into account the comments that it has been making for many years on the need to revise the abovementioned legislation. The Committee is therefore bound to recall once again that Article 4 of 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, the Committee has repeatedly noted 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 urges the Government to take the necessary measures to ensure that the conclusion of collective accords with non-unionized workers (pactos colectivos) is only possible in the absence of trade union organizations. The Committee hopes that the Government will be in a position to report progress in this regard in the near future.

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 reiterated indication that, in accordance with the national legislation and the case law of the Constitutional Court, the apprenticeship contract is not a contract of employment, but is designed to help young persons who are still at the training stage. 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 urges 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. Pensions. After noting the Government’s indications that Legislative Act No. 1 of 2005 does not prevent the parties to collective bargaining, in both the public and private sectors, from improving on pensions through supplementary benefits based on voluntary savings, the Committee previously requested the Government to provide specific examples of collective agreements which provide for supplementary pension benefits. The Committee notes that the Government once again indicates that: (i) through voluntary savings, those covered by the Colombian pension system can make periodic contributions, or pay in amounts that are higher than the compulsory contributions set out by law, with a view to receiving a higher pension; and (ii) the possibility for a third party to pay contributions on behalf of the beneficiary makes it possible for the employer to act as a sponsor, and the possibility therefore exists for this supplementary benefit to be covered by collective bargaining. The Committee nevertheless observes that the Government has not provided specific examples of collective agreements which contain clauses of this nature. The Committee therefore reiterates its request for information on the application of this possibility in practice. It also invites the Government, in its activities to promote collective bargaining, to inform the social partners of the possibility, within the framework of and in accordance with the General Pensions System, to negotiate clauses in collective agreements providing for supplementary pension benefits.

Promotion of collective bargaining in the public sector. The Committee notes with satisfaction the Government’s indication that a new National State Agreement was concluded on 18 August 2021 with all the confederations in the country which benefits around 1,200,000 public sector workers. The Committee notes in particular the Government’s indication that: (i) in accordance with the agreement, Decree No. 961 of 22 August 2021 was adopted setting the remuneration for positions exercised by public employees in the executive branch, autonomous regional and sustainable development corporations, and issuing other provisions; and (ii) the agreement contains a series of clauses intended to reinforce the protection of the exercise of freedom of association in the public sector. The Committee also notes the indications by the CUT, CTC and CGT which: (i) welcome the conclusion of the agreement; (ii) nevertheless regret the high level of non-compliance with previous agreements, as noted by the Commission for the verification of the agreements concluded between the National Government and workers in the State sector, which met in July and August 2021; and (iii) denounce the role played by the Office of the Comptroller General of the Nation and its departmental offices which, through investigations into potential prejudices to the resources of public bodies, is undermining compliance with the agreements that have been concluded, and is likely to have a dissuasive effect on future negotiations. The Committee requests the Government to pay due attention to the observations of the trade union confederations and to indicate the action taken in this regard.

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. 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, 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 notes the Government’s indication that: (i) 194 collective agreements were signed in 2020 (in comparison with 572 in 2019, 490 in 2018 and 380 in 2017); (ii) collaboration with the Government of Canada is continuing for the development of a registration system which will make it possible to determine the coverage rate of collective bargaining; (iii) it is still planned to amend Decree No. 089 of 2014 to facilitate bargaining in a context of a multiplicity of unions by providing that, where there are several unions in the same enterprise, they will be required to form a joint bargaining committee and submit unified claims; and (iii) and the Government continues to be willing to support and accompany, without interference, the social partners when they so request. The Committee also notes that the trade union confederations: (i) place emphasis on the reduction in the number of collective agreements concluded in 2020 and point to the possible effects of the COVID-19 pandemic in this regard; (ii) regret the continuing absence of multi-level bargaining; and (iii) consider that the case of professional football is symptomatic in this respect where the clubs, the Colombian Football Federation (FCF) and the Major Division of Professional Football (Dimayor), institutions which, according to the trade unions confederations, are competent to determine the working conditions in the sector, refuse to bargain with the Colombian Association of Professional Footballers (ACOLFUTPRO), in relation to which the Ministry of Labour set aside the complaint by ACOLFUTPRO concerning the refusal to negotiate.

While noting the information provided by the Government, reiterating indications provided in previous reports, the Committee regrets to note that, despite the very low level of coverage of collective bargaining in the private sector, the Government does not refer to any further specific measures or initiatives adopted to resolve this situation. The Committee particularly notes with concern the absence of action to facilitate bargaining at levels higher than the enterprise level in a context in which: (i) collective bargaining at the sectoral level, in contrast with enterprise bargaining, is not covered by a specific legislative framework (with the exception of the provisions of the Substantive Labour Code relating to the possibility of extending collective agreements) and is almost non-existent in practice (with the exception of the banana sector in Urabá; and (iii) workers in small enterprises may have difficulty in gaining access to enterprise-level collective bargaining as they do not have enterprise unions, for the establishment of which a minimum of 25 members is required.

Recalling once again that, under the terms of Article 4 of the Convention, collective bargaining should be possible at all levels and should be promoted in a manner that is appropriate to national conditions and that, in accordance with Article 5(2)(d) of the Collective Bargaining Convention, 1981 (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, the Committee requests the Government: (i) following consultations with the social partners, to take measures, including legislative measures, for the effective promotion of collective bargaining in the private sector, especially at levels higher than the enterprise level; and (ii) to provide detailed information on the coverage rate of collective bargaining in the private sector.

Settlement of disputes. Committee for the Handling of Conflicts referred to the ILO (CETCOIT). The Committee notes the information provided by the Government 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) in 2020 and 2021, the CETCOIT held 71 meetings, during which 23 cases were identified for the promotion of conciliation decisions and agreements, with 48 follow-up meetings; (ii) agreements were concluded in 95 per cent of the cases, with the signature of 20 reports; (iii) effect was given to the recommendation made by the Committee on Freedom of Association in relation to Case No. 2657; and (iv) the conclusion was facilitated of two collective agreements in the private sector and one agreement in the public sector. The Committee welcomes the results achieved by the CETCOIT and requests the Government to continue providing information in this regard.

In its previous comments, the Committee noted the Government’s indications that the international affairs subcommittee of the Standing Committee for Dialogue on Wage and Labour Policies would follow up the comments made by the Committee of Experts on the application of the Conventions ratified by Colombia and hoped that the work of the subcommittee would facilitate the adoption of the various measures requested by the Committee to give full effect to the Convention. The Committee regrets to note that it has not received further information on this subject. The Committee finally recalls that the Government may request ILO technical assistance in this regard.

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

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

In its previous comments, the Committee requested the Government to provide information on the impact in practice of the application of Decree No. 017 of 2016, which aims to optimize procedures for the establishment of labour arbitration tribunals and to provide its comments on the proposals made by the trade union confederations for the introduction of additional improvements in arbitration procedures. In this regard, the Committee notes that the General Confederation of Labour (CGT), on the one hand, and the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), on the other, agree in stating in their last observations that: (i) despite the adoption of the Decree, the length of time taken for the establishment of arbitration tribunals and for them to issue their awards is usually excessively long (they indicate that the average is 369 days, but that in extreme cases it can be four years); (ii) an appeal to set aside an arbitration award should not have the effect of suspending its application to prevent the use of appeals as an additional delaying tactic by enterprises; (iii) the procedures for the appointment of the third arbitrator in the tribunal should be changed to prevent them being selected from lawyers’ offices that are close to the enterprise; and (iv) compulsory mediation machinery should be established upon the expiry of the direct settlement stage to maximize the possibilities of avoiding the arbitration tribunal. The Committee notes in particular the indication by the trade union confederations that 23 per cent of collective bargaining processes involving trade unions are settled by arbitration tribunals and that the slowness and flaws in the procedure place trade unions in a situation of particular disadvantage in view of the rapidity with which enterprises conclude collective accords with workers who are not employees. The Committee notes that the CUT and CTC add in their 2020 observations that, as at September 2020, only 1 per cent of applications registered in 2019 to establish an arbitration tribunal had resulted in an arbitration award being issued.

The Committee further notes that the Government indicates in the information provided in 2019 and 2020 that: (i) the development of the arbitration procedure has its own regulations - Law 1563 of 2012 - which respects due process; (ii) in 2019, a total of 171 applications to establish an arbitration tribunal were registered, resulting in an arbitration award being issued in one case and in the withdrawal of the application or the conclusion of an agreement in another 13 cases; the other 157 applications are still being processed; and (iii) the delay in the arbitration tribunals is due to various factors, including the incomplete nature of the application submitted by the parties or situations such as the non-acceptance or resignation of an arbitrator. The Committee also notes that, although it does not provide information on the various aspects of the arbitration procedure highlighted by the workers’ organizations, the Government states that it is considering the possibility of amending the regulations in order to overcome any difficulties that may have arisen in the course of the procedure. Recalling the importance for the effective promotion of collective bargaining of the existence of effective machinery for the voluntary settlement of collective disputes and encouraged by the Government’s indication that it envisages the possibility of a regulatory amendment in this regard, the Committee requests the Government to engage in discussions with the social partners to improve the efficiency of mediation, conciliation and arbitration procedures in collective labour relations. The Committee requests the Government to provide information on any developments in this regard.

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

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

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.]

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

In its previous comments, the Committee requested the Government to provide information on the impact in practice of the application of Decree No. 017 of 2016, which aims to optimize procedures for the establishment of labour arbitration tribunals and to provide its comments on the proposals made by the trade union confederations for the introduction of additional improvements in arbitration procedures. In this regard, the Committee notes that the General Confederation of Labour (CGT), on the one hand, and the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), on the other, agree in stating in their last observations that: (i) despite the adoption of the Decree, the length of time taken for the establishment of arbitration tribunals and for them to issue their awards is usually excessively long (they indicate that the average is 369 days, but that in extreme cases it can be four years); (ii) an appeal to set aside an arbitration award should not have the effect of suspending its application to prevent the use of appeals as an additional delaying tactic by enterprises; (iii) the procedures for the appointment of the third arbitrator in the tribunal should be changed to prevent them being selected from lawyers’ offices that are close to the enterprise; and (iv) compulsory mediation machinery should be established upon the expiry of the direct settlement stage to maximize the possibilities of avoiding the arbitration tribunal. The Committee notes in particular the indication by the trade union confederations that 23 per cent of collective bargaining processes involving trade unions are settled by arbitration tribunals and that the slowness and flaws in the procedure place trade unions in a situation of particular disadvantage in view of the rapidity with which enterprises conclude collective accords with workers who are not employees. Recalling the importance for the effective promotion of collective bargaining of the existence of effective machinery for the voluntary settlement of collective disputes, the Committee requests the Government to engage in discussions with the social partners to improve the efficiency of mediation, conciliation and arbitration procedures in collective labour relations. The Committee requests the Government to provide information on any developments in this regard.

The Committee further notes that the Government indicates that: (i) from January to October 2019, 77 Arbitration Tribunals have been convened; and (ii) the delay in the Arbitration Tribunals is due to various factors, including the incomplete nature of the application submitted by the parties or situations such as the non-acceptance or resignation of an arbitrator. The Committee also notes that, although it does not provide information on the various aspects of the arbitration procedure highlighted by the workers’ organizations, the Government states that it is considering the possibility of amending the regulations in order to overcome any difficulties that may have arisen in the course of the procedure. Recalling the importance for the effective promotion of collective bargaining of the existence of effective machinery for the voluntary settlement of collective disputes and encouraged by the Government’s indication that it envisages the possibility of a regulatory amendment in this regard, the Committee requests the Government to engage in discussions with the social partners to improve the efficiency of mediation, conciliation and arbitration procedures in collective labour relations. The Committee requests the Government to provide information on any developments in this regard.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, 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, 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 to these observations.

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 observations of the International Organisation of Employers (IOE) and the National Employers’ Association of Colombia (ANDI), received on 30 August 2019, 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 most recent observations, 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 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 observations of 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 notes that the Government provides limited information concerning the alleged ineffectiveness of interventions 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 adequate protection in this regard. 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 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; 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 that: (i) there are 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 has 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 the agreement of the ANDI with the Government’s indication and its view that workers must be free to choose the form of association that they wish to have for the purposes of negotiating collectively, and its emphasis that collective accords cannot be used to elude trade union membership.

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 also indicate 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.

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 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; (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 respecting 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 recent 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 by the Government and the ANDI 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; and (iii) from 2012 to 2019, the CETCOIT has achieved the conclusion of agreements in 63 per cent of the cases examined. The Committee notes the indication by the ANDI 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. The Committee requests the Government to continue providing information in this regard.

Observing that, in its report on Convention No. 87, the Government indicates 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.]

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

Exclusion of the remuneration of apprentices. The Committee notes that the Confederation of Workers of Colombia (CTC), the Single Confederation of Workers of Colombia (CUT) and the General Confederation of Labour (CGT) indicate that, under the terms of section 30 of Act No. 789 of 2002, the determination of the remuneration of apprentices (the monthly support subsidy) through collective agreements and accords is prohibited, and that this restriction was considered acceptable by the Constitutional Court in a 2004 ruling. The Committee emphasizes that the Convention does not exclude apprentices from its scope of application and that the parties to bargaining should therefore be able to decide to include the subject of their remuneration in their collective agreements. The Committee therefore 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.

Arbitration tribunals. The Committee takes due note of the adoption of Decree No. 017 of 2016 to optimize procedures for the establishment of labour arbitration tribunals. The Committee notes in this regard the indications of the CUT, CTC and CGT that: (i) the proper application of this Decree would contribute to reducing in part the time required for the settlement of collective disputes; (ii) the Decree should regulate other aspects of the arbitration procedure; and (iii) an earlier mediation stage should be established with a view to avoiding a high number of bargaining processes ending up before arbitration tribunals. The Committee requests the Government to provide information on the impact in practice of the application of Decree No. 017 and to provide its comments on the proposals made by the trade union confederations.

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

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.

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

The Committee notes the comments from the International Organisation of Employers (IOE) and the National Association of Employers of Colombia (ANDI) confirming the adequate functioning of the Standing Committee for Dialogue on Wage and Labour Policies or the Special Committee for the Handling of Conflicts Referred to the ILO (CETCOIT).

The Committee also notes the comments submitted by the International Trade Union Confederation (ITUC), the World Federation of Trade Unions (WFTU), the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC), and other national workers’ organizations in 2012 and 2013, referring to issues previously examined by the Committee and to the use of legal formulas (such as “trade union accords”), which obstruct the exercise of the right to collective bargaining, as well as to various acts of anti-union discrimination in the public and private sectors. The Committee notes the Government’s reply to these comments, particularly its statement that the purpose of trade union accords is that trade unions may participate in the management of enterprises and also represent self-employed workers (the trade union becomes the employer of its affiliated workers), and also the fact that in some specific cases unwarranted use of this concept has been detected and the corresponding measures have been taken (a tripartite working group was set up which agreed on specific measures to resolve the issue in the health sector). The Committee hopes that the reported cases of discrimination will be discussed within the CETCOIT.

Article 4 of the Convention. Collective bargaining in the public sector. Public servants not engaged in the administration of a State. The Committee previously noted Decree No. 535 of 24 February 2009 concerning collective bargaining in the public sector, and that tripartite discussions were under way with a view to amending it. The Committee notes the Government’s statement that the abovementioned Decree was repealed by Decree No. 1092 of 2012 concerning collective bargaining in the public sector. The Committee welcomes and notes with interest that pursuant to the Decree, the Government and the CUT, CGT and CTC and other organizations of workers employed by the State, with the support of Public Services International, reached an agreement in negotiations on a unified set of demands relating to government service which benefits more than 1,050,000 public employees throughout the country and that bargaining has been initiated in 27 departmental governments, 62 town halls and municipal councils, one superintendency, 19 universities and other national, departmental and municipal bodies. The Committee also notes that it was agreed to consider amending Decree No. 1092 (which had been contested by a number of national workers’ organizations). The Committee requests the Government to provide information in this respect.

Collective accords with non-unionized workers. The Committee notes the Government’s statement that from 2012 to the present time, 626 collective labour agreements and 345 collective accords were concluded. While noting the Government’s repeated statement that Act No. 1453 of 2011 establishes the penalty of up to two years’ imprisonment and/or fines for anyone concluding collective accords that grant better conditions to non-unionized workers, the Committee recalls that collective accords with non-unionized workers should only be possible in the absence of trade unions.

Coverage of collective bargaining in the private sector. The Committee requests the Government to send observations on the statement by the CUT that less than 4 per cent of workers are covered by a collective agreement.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments from the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), objecting to Decree No. 1429 of 28 April 2010, which provides for the possibility of concluding trade union accords for the provision of services or the performance of work, thereby, in the opinion of the above unions, distorting collective bargaining and trade union autonomy. The Committee requests the Government to send its observations on this matter.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Comments from workers’ and employers’ organizations. The Committee notes the comments from the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the Confederation of Retirees of Colombia (CPC) dated 3 June and 30 August 2010 and 29 August 2011; from Education International (EI), dated 7 October 2010; from the International Trade Union Confederation (ITUC), dated 4 August 2011; and from the General Confederation of Labour (CGT), dated 1 September 2011, referring to issues examined by the Committee and also to acts of anti-union discrimination. The Committee also notes the comments from the National Association of Telephone, Communication and Allied Technicians (ATELCA), dated 4 and 10 November 2010, which refer to matters under examination by the Committee on Freedom of Association (Case No. 2434). The Committee further notes the comments from the National Association of Employers of Colombia (ANDI), dated 31 August 2011. Finally, the Committee notes various communications from the Government relating to these comments.

Tripartite Agreement on Freedom of Association and Democracy. The Committee notes the Government’s statement that in May 2011 the Government, workers and employers renewed the Tripartite Agreement on Freedom of Association and Democracy which they had signed in 2006. The Government asserts that the signature of this Agreement reaffirms its commitment to continue promoting and extending social and labour dialogue in the country, and that it is of vital importance to increase and deepen cooperation with the ILO in various fields, including with regard to the regulation of collective accords with non unionized workers.

The Committee notes that the Government of Colombia and the Government of the United States also agreed, on 7 April 2011, on a plan of action lasting until 2013, which provides, inter alia, for the promotion of collective agreements and the establishment of a solid system of application.

High-Level Tripartite Mission. In its observation relating to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee notes the visit of the High-Level Tripartite Mission to the country from 14 to 18 February 2011, and also its conclusions, which, as regards the Convention, cover issues related to acts of anti union discrimination and the strengthening of social dialogue and collective bargaining.

The Committee notes the Government’s statement in its report that it remains fully available to continue with social dialogue and create the space needed to contribute to the building of trust and the search for joint solutions enabling continued progress on labour-related matters. The Committee notes that departmental sub-commissions were set up towards this end for consultation on wage and labour policies which are receiving technical assistance as regards fundamental rights at work, the settlement of labour disputes, state policies for decent work, protection for vulnerable groups of workers and dissemination of fundamental rights at work. The Committee also observes that, according to the Government, the 32 sub-commissions which have been set up have dialogue plans designed to tackle specific labour issues in each department and a total of 428 meetings were held from 2009 to 2011. Finally, the Committee notes the Government’s indication that a major training campaign has been undertaken for the benefit of the social partners with training provided for a total of 13,444 trade union officials and the creation of a diploma in negotiation, mediation and dispute settlement with the participation of trade unionists, labour inspectors and employers.

Article 4 of the Convention. Collective bargaining in the public sector. Public servants not engaged in the administration of the State. Decree No. 535 of 24 February 2009. In its previous observation the Committee noted with satisfaction the adoption of Decree No. 535 of 24 February 2009 concerning collective bargaining in the public sector, while also indicating that it was aware that the Decree is very short, can be improved and establishes principles which probably require further regulation to comply more effectively with its objectives and to extend in practice collective agreements in the various institutions. The Committee asked the Government to continue dialogue with trade union organizations with a view to improving the Decree that had already been adopted and to provide information in this respect. The Committee notes the Government’s statement that: (1) in the context of meetings of the Sectoral Commission for the Public Sector, which comprises various Government entities and representatives of the CUT, CGT, CTC and the National Federation of State Workers (FENALTRASE), meetings have been held since February 2011 to conduct consultations on amendments to Decree No. 535 of 2009; and (2) in May 2011 the members of the Commission agreed on a preliminary draft of work for amendments to Decree No. 535 of 2009 “regulating section 416 of the Labour Code”. The Committee notes that the abovementioned trade unions indicate that only the Government’s signature is lacking from the agreement on the preliminary draft of work for amendments to Decree No. 535 of 2009 and this should come into force as soon as possible. The Committee welcomes this information and reminds the Government that, if it wishes, it may avail itself of technical assistance from the Office in relation to the draft decree for amendments to Decree No. 535 of 2009. The Committee requests the Government to provide information in its next report on any further developments in this respect.

Collective accords with non-unionized workers. In its previous observation the Committee referred to the need to ensure that collective accords are not used to undermine the position of trade union organizations and to the need to ensure the possibility in practice of concluding collective agreements with them. It also asked the Government to provide information on the total number of collective agreements and collective accords and the respective numbers of workers covered by them. The Committee notes the Government’s indication that, with a view to discouraging the conclusion of collective accords in which better conditions are granted to non-unionized workers, Act No. 1453 of 2011 was passed, amending section 200 of Act No. 599 of 2000 and establishing the penalty of imprisonment (one to two years) and/or fines (100 to 300 times the legal monthly minimum wage in force) in the event of the conclusion of collective accords in which, overall, better conditions are granted to non-unionized workers by comparison with the conditions agreed on in collective agreements with unionized workers at the same enterprise. The Committee nevertheless underlines that when there is a trade union at the enterprise, collective agreements should not be concluded with non-unionized workers. Finally, the Committee notes the Government’s statement that collective bargaining is developing in Colombia and that 279 collective agreements and 166 collective accords were concluded between January and July 2011. The Committee requests the Government to continue to supply statistics in this regard and state whether any trade union organizations exist in the enterprises where collective accords have been concluded with non-unionized workers.

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

The Committee notes the comments of the International Trade Union Confederation (ITUC), of 29 August 2008 and 26 August 2009; the Single Confederation of Workers of Colombia (CUT), the General Confederation of Workers (CGT) and the Confederation of Workers of Colombia (CTC), of 28 January and 13 June 2008; of the CGT of 19 August 2008; of the CUT and the CTC of 27 August 2008; and of the CUT of 28 August 2009. These organizations refer to matters that are under examination by the Committee, as well as to anti-union dismissals and the lack of adequate protection in this respect. The Committee also notes the comments made by the National Association of Telephone, Communication and Allied Technicians (ATELCA) of 16 August 2008 and 28 August 2009 referring to a case under examination by the Committee on Freedom of Association.

Finally, the Committee notes the comments of the National Association of Employers of Colombia (ANDI), of 1 September 2009, which refer to matters under examination by the Committee and mention the various committees and commissions operating in the country, of which it places emphasis on: the National Dialogue Commission on Wage and Labour Policies, the Inter-Institutional Human Rights Commission, the Special Committee for the Handling of Conflicts Referred to the ILO (CETCOIT) and the Negotiations Commission in the Public Sector. Furthermore, every five weeks a meeting is held between the President and Vice-President of the Republic, the Minister of Social Protection and workers’ organizations. The ANDI also refers to USAID assistance programmes and the bipartite Swedish technical cooperation programme, which are carrying out training programmes for dispute resolution, collective bargaining and social dialogue.

The Committee also notes the various communications from the Government relating to these comments, and its reply to the comments made previously by the Union of Maritime and Inland Water Transport Workers (UNIMAR).

Furthermore, the Committee notes with interest the invitation made by the Government to the Office for a mission to visit the country with a view to observing the effect given to the conclusions of the Conference Committee on the Application of Standards in relation to the examination of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which nevertheless addressed certain matters relating to Convention No. 98. The mission visited the country from 19 to 23 October 2009 and held interviews with representatives of the Government and of the social partners, as well as representatives of the principal institutions in the country.

The Committee also notes the cases examined by the Committee on Freedom of Association relating to Colombia. In this respect, the Committee notes with interest that the Government delivered a communication to the mission referred to above, in which it indicates that: (1) the CETCOIT constitutes a special and particularly valuable forum for creating trust between the social partners; (2) it supports the reinforcement of the procedure and, to this end, will allocate the necessary resources so that it is supported for one year by a university to facilitate the resolution of the cases before the CETCOIT; and (3) it will examine the possibility of having recourse to the procedure of a preliminary contacts mission, as envisaged in the rules of procedure of the Committee on Freedom of Association, as it holds the conviction that implementing all mechanisms can improve industrial relations in the country. The Committee requests the Government to provide information in its next report on any progress made in the work of the CETCOIT.

The Committee further notes the adoption of Act No. 1149 of 2007 amending the Code of Labour Procedures and Social Security by introducing oral hearings and making judicial proceedings more flexible. The Committee notes that the mission was informed that it is the responsibility of the Higher Council of the Judiciary to give effect to the Act, for which a time period of four years is envisaged. The Committee notes the existence of pilot plans for the application of these procedures in certain regions of the country, with appeals being decided upon in two months in the first instance and in one month in the second instance.

The Committee welcomes the adoption of Act No. 1309 of 2009 which provides that any person who prevents or disturbs a lawful assembly or the exercise of rights granted by labour laws or engages in reprisals on grounds of lawful strike action, assembly or association, shall be liable to a fine of between 100 and 300 minimum monthly wages as established by law or to imprisonment.

Pending issues

Collective bargaining in the public sector. The Committee recalls that for many years it has been referring to the need to give effective recognition to the right to collective bargaining of public employees who are not engaged in the administration of the State. The Committee notes with satisfaction that for the first time since the ratification of the Convention in 1976, and following repeated requests, on 24 February 2009 the Government issued Decree No. 535 respecting collective bargaining in the public sector and it observes that, according to the Government’s indications in its report, it has already given rise to tangible results, as processes of dialogue have progressed in the District of Bogotá, in the Ministry of Social Protection and in the Ministry of Education (in the latter case, with the Colombian Federation of Educational Staff (FECODE)), resulting in the conclusion of agreements. The Committee observes that the objective of this Decree is “to establish bodies within which dialogue will be furthered between the trade union organizations of public employees and public sector entities” (section 1), with a view to determining conditions of work and regulating relations between employers and employees (section 2). The Decree also envisages the procedure for engaging in dialogue. The Committee observes that the Decree applies to all state employees, with the exception of high-level employees discharging functions of management, direction and institutional guidance the exercise of which involves the adoption of policies or directives.

In this respect, the Committee notes the indication by the CUT in its comments that the agreement with the FECODE has not been fully respected and that the CUT has lodged an application with the State Council to strike down Decree No. 535, which is currently being examined (this organization and other representative workers’ organizations informed the mission that they challenge Decree No. 535 and indicated that the first draft of the new Decree to amend it, which is not attached, is not in conformity with the Labour Relations (Public Service) Convention, 1978 (No. 151)). The Committee observes that the application for the Decree to be struck down is based in particular on the interpretation of certain provisions of the Colombian Constitution and on issues of compliance with domestic legislation, on which matter the Committee is clearly not competent.

The Committee further notes the Government’s indication to the mission that it is planned to revise the Decree and that a draft Decree to amend it was forwarded to workers’ and employers’ organizations for discussion.

The Committee requests the Government to continue dialogue with trade union organizations with a view to improving the Decree that has already been adopted and to keep it informed on this matter. The Committee is aware that the Decree is very short, can be improved and establishes principles which probably require further regulation to comply more effectively with its objectives and to extend in practice collective agreements in the various institutions. While from a technical viewpoint such regulation may well be appropriate, the Committee recalls that the Convention does not require exhaustive regulation, but rather is compatible with systems that envisage a minimum of interference by the State in collective bargaining in the public sector.

Collective accords with non-unionized workers. The Committee recalls that in its previous observation it referred to the need to ensure that collective accords are not used to undermine the position of trade union organizations, and to the need to ensure the possibility in practice to conclude collective agreements with them. It requested the Government to provide information on the total number of collective agreements and collective accords and the respective number of workers covered by them. The Committee notes that the ITUC and the CUT refer to the low rate of collective bargaining in the country, which only covers 1.2 per cent of workers. In 2008, only 473 agreements were concluded, consisting of 256 collective agreements and 217 collective accords (negotiated directly with the workers).

The Committee notes the Government’s indication that the conclusion of collective accords, which is permitted by the legislation, in no event prevents the trade union from submitting claims and concluding collective agreements, provided that they are in accordance with ruling C-345 of 2007 of the Constitutional Court, under which “direct negotiations between employers and non-unionized workers may not undermine collective bargaining and trade union rights”. The Government emphasizes that the only case in which the same employer may conclude a collective labour agreement and a collective accord is when the trade union represents less than one-third of the workers in the enterprise. The Government adds that in 2008 a total of 209 collective accords were deposited, 15 per cent more than the previous year, when 182 were deposited. With regard to collective agreements, 261 were deposited in 2008, 3 per cent more than in 2007, when 254 were deposited. In this respect, while recalling that collective accords negotiated directly with workers should not be used to undermine the position of trade union organizations, the Committee requests the Government to provide information on the measures adopted to encourage and promote the full development and utilization of voluntary collective bargaining, in accordance with Article 4 of the Convention, and to ensure that the conclusion of collective accords negotiated directly with the workers is only possible in the absence of a trade union and that it is not carried out in practice for anti-union purposes.

Restrictions on the content of negotiations. The Committee notes Legislative Act No. 01 of 2005, amending article 48 of the Constitution on social security, and thereby limiting the right of collective bargaining on pensions. The Committee notes that the comments of ATELCA refer to this matter. The Committee observes that the Act provides that: as from the coming into force of the present Legislative Act, pension conditions that differ from those set out in the laws on the General Pensions System shall not be established in accords, collective labour agreements, awards or any juridical act. Without prejudice to acquired rights, the scheme applicable to members of the public forces and the President of the Republic, as established in the clauses of this section, the period for which special pension schemes are in force, those covered by exceptions, as well as any other difference from the permanent provisions of the laws on the General Pensions System, shall expire on 31 July 2010.

The Committee notes the Government’s indication in this respect that article 48 of the Constitution provides that social security shall be provided in accordance with the principles of efficiency, universality and solidarity. The Government adds that the universality of the system presupposes protection guarantees for all persons, without discrimination whatsoever, at all the stages of life, and that this guarantee without discrimination can only be offered by a unified system which cannot be varied at the will of one sector of beneficiaries. Account has to be taken not only of the principles governing the social security system, but also of the economic consequences of the current situation, as well as those in the medium and long term. The Government adds that Act No. 100 of 1993 already provided that pension schemes were not to be included in collective bargaining. The principal objective of Legislative Act No. 01 of 2005 is to ensure effective entitlement to a pension for all inhabitants who meet the requirements of the law for the granting of such entitlement, under conditions of equality and without privilege.

The Committee observes that this matter was examined by the Committee on Freedom of Association in the context of Case No. 2434 (see 344th Report of the Committee on Freedom of Association). The Committee of Experts observes that in its conclusions the Committee on Freedom of Association considered that, with regard to agreements concluded prior to the entry into force of the legislation, which would no longer be in force as from 2010 under the terms of the Legislative Act, this could imply in certain cases a unilateral modification of the content of signed collective agreements, which is contrary to the principles of collective bargaining, as well as the principle of the acquired rights of the parties. In this respect, it requested the Government to take the appropriate measures so that collective agreements containing clauses on pensions continue to produce their effects until their expiry date, including after 31 July 2010.

With regard to agreements concluded after the entry into force of Legislative Act No. 01, and particularly in relation to the general prohibition of the establishment of a pension scheme that differs from any established under the General Pensions Scheme, the Committee on Freedom of Association requested the Government, in order to ensure harmonious industrial relations in the country, to hold in-depth consultations on retirement and pensions with the interested parties in order to find a negotiated solution acceptable to all the parties concerned, in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia, and to ensure in particular that the parties to collective bargaining can improve statutory pension benefits or pension schemes by mutual agreement.

In the same way as the Committee on Freedom of Association, the Committee of Experts recalls that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties (see General Survey on freedom of association and collective bargaining, 1994, paragraph 250).

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report. The Committee also notes the communication from the Minister for Social Security addressed to the Director‑General which was read in the Conference Committee on the Application of Standards, reaffirming the Government’s commitment to the Tripartite Agreement for the Right of Association and Democracy, signed by the Government and the employers’ and workers’ representatives on 1 June 2006 in Geneva, and expressing the wish to reinforce its implementation. The Committee also notes the reply sent by the Director-General indicating that the Office will provide all possible assistance to ensure the effective application of the stated measures. In this respect, it was proposed to send an ILO high-level mission, appointed by the Director-General, in order to identify new needs in relation to ensuring the effective application of the Tripartite Agreement and of the technical cooperation programme. The Committee also notes the numerous cases concerning Colombia which are being examined by the Committee on Freedom of Association.

Moreover, the Committee notes the comments on the application of the Convention from the International Trade Union Confederation (ITUC), dated 28 August 2007, and also the comments from the Single Confederation of Workers (CUT), the General Confederation of Workers (CGT), the Confederation of Workers of Colombia (CTC) and the Confederation of Pensioners of Colombia (CPC), dated 28 May 2007, and of the CUT, dated 31 August 2007, referring to issues which have been under examination by the Committee.

Pending issues

–           Collective bargaining in the public sector. The Committee recalls that for many years it has been referring to the need to give effective recognition to the right to collective bargaining of public employees who are not engaged in the administration of the State. The Committee notes the Government’s statement that, under Act No. 411, public employees have the right to submit respectful claims to their respective entities and the latter must reply to the said claims, as guaranteed by article 23 of the Constitution. According to the Government, by virtue of this procedure, a significant number of agreements on conditions of work have been achieved. However, the Committee emphasizes that, under the provisions of Convention No. 98, public employees who are not engaged in the administration of the State shall enjoy the right to collective bargaining. In this respect, the Committee notes Constitutional Court ruling C-1234/05 of 29 November 2005, which declared as enforceable the expression “trade unions of public employees may not submit claims or conclude collective agreements” contained in section 416 of the Substantive Labour Code, provided that, in order to implement the right to collective bargaining established in article 55 of the Political Constitution, and in conformity with ILO Conventions Nos 151 and 154, trade unions of public employees may have recourse to other means of concertation regarding conditions of work, on the basis of the claim made in this respect by these trade unions, pending the regulation of the procedure for this purpose by the Congress of the Republic. The Committee therefore requests the Government to take the necessary steps, in conformity with the ruling of the Constitutional Court, to take legislative measures to ensure the right to collective bargaining of public employees and in the meantime, to promote means of concertation regarding conditions of work. The Committee requests the Government to supply information in its next report on all measures adopted in this respect, in the hope that it will be able to note tangible progress in the near future, and reminds it that it may avail itself of the technical assistance of the Office.

–           Collective accords with non-unionized workers. The Committee recalls that in its previous observation it referred to the need to ensure that collective accords are not used to undermine the position of trade union organizations and ensure the possibility in practice to conclude collective agreements with them, and asked the Government to provide information on the total number of collective agreements and collective accords and the respective number of workers covered by them. In this regard, the Committee notes the Government’s statement that in conformity with Colombian legislation: (a) collective accords and collective agreements can coexist; (b) collective accords may not exceed the benefits laid down in the collective agreements of the same enterprise; and (c) even where a collective accord exists, an employer is obliged to negotiate with the trade union and, in the absence of any agreement, the union is entitled to take the collective dispute to a court of arbitration. The Government points out that the Ministry of Social Security has participated in consultation processes and concluded a satisfactory agreement on various occasions, in the form of either a collective agreement or a collective accord. The Committee observes that, under section 481 ff. of the Substantive Labour Code, collective accords may only be concluded in cases where the membership of the trade union does not include over one third of the workers and refers once again to Article 4 of the Convention respecting the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee emphasizes that direct negotiations with workers should only be possible in the absence of trade union organizations. The Committee therefore requests the Government once again to guarantee that collective accords are not used to undermine the position of trade union organizations and the possibility in practice of concluding collective agreements with them. The Committee also requests the Government to provide information on the total number of collective agreements and collective accords, and on the respective number of workers covered by them.

Finally, the Committee notes the Government’s statement that, in the context of the Standing Advisory Committee on Wage Policies, the Special Committee on the Settlement of Disputes relating to the ILO was reactivated, with a view to handling disputes arising from matters regulated by the ILO Conventions, and giving priority to those relating to freedom of association.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Tripartite Agreement for the Right of Association and Democracy concluded by the Government and the representatives of employers and workers in Geneva in the context of the Conference Committee on the Application of Standards, on 1 June 2006. The Committee notes the Government’s observations in reply to the comments made by the International Confederation of Free Trade Unions (ICFTU), the World Confederation of Labour (WCL), dated 31 August and 7 September 2005, and the Single Confederation of Workers (CUT), the General Confederation of Workers (CGT) and the Confederation of Workers of Colombia (CTC) of 7 and 14 June, 31 August and 7 September 2005, referring to issues already raised by the Committee in its 2005 observation.

The Committee also notes the reports of the Committee on Freedom of Association on the various cases under examination concerning Colombia, adopted at its sessions in March, June and November 2006.

The Committee further notes the comments of the ICFTU of 10 August 2006, and the joint comments of the CUT, CGT, CTC and the Confederation of Pensioners of Colombia (CPC), of 16 June 2006, referring to pending issues relating to the legislation and the application of the Convention in practice which are under examination, such as the submission of collective disputes to compulsory arbitration by the Ministry of Social Protection, the power of arbitration boards to revise collective agreements and the exclusion of many workers from the scope of collective agreements due to the increase in the use of civil contracts. The ICFTU also denounces the pressure exerted by armed groups upon workers to renounce the rights established in collective agreements. The Committee requests the Government to provide its observations in this respect.

Finally, in relation to the comments of the Union of Maritime and Inland Water Transport Industry Workers (UNIMAR), of 30 May 2006, relating to a process of liquidation in disregard of the special protection of trade union officials, the Committee is examining this matter in its observation on Convention No. 87.

The Committee proposes, in accordance with the regular reporting cycle, to examine at its next session in November-December 2007 all the matters relating to the legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and its reply to the comments made by the Single Confederation of Workers (CUT), the General Confederation of Democratic Workers (CGTD) and the Confederation of Workers of Colombia (CTC) in their communication of 1 June 2004 and by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 23 July 2004. The Committee also notes the report of the high-level tripartite visit undertaken in the country in accordance with a decision of the Committee on the Application of Standards in the context of the examination of the application of Convention No. 87 following an invitation by the Government of Colombia to the Chairperson of the Committee on Freedom of Association and the Employer and Worker Vice-Chairpersons of the Committee on the Application of Standards.

The Committee also notes the new comments submitted by the CUT, the CGT and the CTC in communications dated 7 and 14 June and 7 September 2005. The Committee further notes the comments made by the CTC in a communication dated 31 August 2005. The ICFTU also made comments in a communication on 31 August 2005. The CMT and the ICFTU made joint comments in a communication dated 7 September 2005. Finally, SINTRAELECOL made comments in a communication dated 20 September 2005. The Committee notes that the comments relate to matters raised previously by the Committee concerning the absence of collective bargaining in the public administration, recourse to collective accords with non-unionized workers in parallel to collective agreements and the lack of consultation of trade union organizations in restructuring processes.

1. Collective bargaining in the public sector. The Committee recalls that for many years it has been referring to the need to give effective recognition to the right to collective bargaining of public employees who are not engaged in the administration of the State. The Committee notes the Government’s reiterated statement that, in accordance with the case law of the Constitutional Court, organizations of public employees are prohibited from submitting claims relating to their conditions of employment or to conclude collective agreements, as their employment conditions are governed by the law. According to the Constitutional Court, this means that the establishment of machinery to enable public employees or their representatives to participate in the determination of their terms and conditions of employment is valid, on condition that it is understood that in the final resort the decision is taken by the authorities referred to in the Constitution. The Committee nevertheless emphasizes that, under the terms of Convention No. 98, public employees who are not engaged in activities involving the administration of the State should enjoy the right to collective bargaining. In this respect, the Committee regrets that the Government has not yet taken legislative measures to ensure the right to collective bargaining of public employees. The Committee requests the Government to provide information in its next report on any measures adopted in this respect and hopes that it will be able to note tangible progress in the near future.

2. Collective accords with non-unionized workers. With regard to the signature of collective accords to the prejudice of collective agreements, the Committee notes the Government’s indication that collective accords are provided for in the legislation and its emphasis on the equality of collective accords and collective agreements. The Committee notes that, under sections 481 et seq. of the Substantive Labour Code, collective accords can only be concluded in cases in which the membership of the trade union organization does not include over one-third of the workers. The Committee observes that, according to the information gathered by the high-level tripartite visit, it is frequently the case in practice that workers who are members of a trade union organization are encouraged to disaffiliate from it and to sign a collective accord (the members of a trade union cannot sign collective accords), thereby bringing the number of members below the level of one-third of the workers in the enterprise. The Committee recalls once again Article 4 of the Convention, respecting the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, and emphasizes that direct negotiations with workers should only be possible in the absence of trade union organizations. In this respect, the Committee requests the Government to take measures to guarantee that collective accords are not used to undermine the position of trade union organizations and the possibility in practice to conclude collective agreements with them, and to provide information on the total number of collective agreements and collective accords and the respective number of workers covered by them.

3. Consultations concerning restructuring processes. With regard to the lack of consultation with workers’ organizations concerning restructuring processes, the Committee notes that, according to the information provided by the Government, the most recent restructuring processes have been undertaken following consultations with trade union organizations. The Committee emphasizes the convenience of governments engaging in meaningful consultations with trade union organizations with a view to discussing the impact of restructuring programmes on the employment and working conditions of employees.

Finally, the Committee notes the Government’s indication that the Standing Advisory Committee on Wage Policies met on 1 September 2005, that it is planned to continue holding regular meetings and that, in view of the importance of Convention No. 98, the participants in the Standing Committee have been invited to establish a joint agenda to discuss matters relating to the Convention.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the comments submitted by the Single Confederation of Workers (CUT), the General Confederation of Democratic Workers (CGTD) and the Confederation of Workers of Colombia (CTC) in a communication of 1 June 2004 on the application of the Convention, and by the International Confederation of Free Trade Unions (ICFTU) in a communication of 23 July 2004. The Committee requests the Government to communicate its observations on these comments in its next report.

The Committee will examine the other matters it raised in its previous observation (see observation of 2003, 74th Session) next year in the context of the regular reporting cycle.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report in reply to the comments made by the Colombian Workers’ Confederation (CTC) in a communication dated 21 June 2002, which refer among other matters to the denial of the right of collective bargaining for workers in the public administration. The Committee also notes the comments made by the World Confederation of Labour (WCL) referring to the absence of collective bargaining in the public administration and recourse to collective accords in parallel with collective agreements.

1. The Committee recalls once again that it has been referring for many years to the need to give effective recognition to the right of public employees who are not engaged in the administration of the State to collective bargaining and observes that the Government’s report does not refer to this matter. The Committee emphasizes that, in accordance with the provisions of Convention No. 98, public employees who are not engaged in the administration of the State should enjoy the right to collective bargaining. The Committee regrets that the Government has still not taken legislative measures to establish the right of public employees to collective bargaining. The Committee requests the Government to provide information in its next report on any measure adopted in this respect and hopes that it will be able to note tangible progress in the near future.

2. The Committee also recalls that in its observation in 2002 it referred to enterprise, government and judicial practices giving preference to collective accords with non-unionized workers, disregarding collective agreements and existing trade unions. The Committee notes that the Government does not refer to this matter and once again recalls that Article 4 of the Convention calls for the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, and that direct negotiations with workers should only be possible in the absence of trade union organizations. The Committee once again requests the Government to provide information on any measure adopted in this respect and on the total number of collective agreements and collective accords, and the number of workers covered by them.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that the Confederation of Workers of Colombia (CTC) has sent comments on the application of the Convention in its communication dated 21 June 2002. In this respect, the Committee requests the Government to provide its observations on these comments with its next report.

The Committee will examine the other questions pending next year in the framework of the regular examination of the application of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

The Committee recalls that in its 1999 observation, it had noted the comments on the application of the Convention transmitted by the General Confederation of Democratic Workers (CGTD), the Trade Union of Telecommunication Workers of Santa Fe de Bogotá (SINTRATELEFONOS), the Trade Union of Textile Industry Workers (SINTRATEXTIL) and the World Federation of Trade Unions (WFTU) and that in its observation in 2000 it had referred to the comments made by the Maritime Transport Workers Union (UNIMAR). The Committee notes that in its report the Government confines itself to indicating that these relate to matters covered by cases currently being examined by the Committee on Freedom of Association of the ILO’s Governing Body. However, the Committee recalls that there are other issues pending concerning the application of the Convention which need to be dealt with. The Committee notes that the above comments relate to non compliance with collective agreements by the municipality of Ibagué and the Coltejer and the GM Colmotores enterprises, and the dismissal of trade union leaders in the municipality of Montería and from the merchant navy. In this respect, the Committee wishes to emphasize that both employers and trade unions must negotiate in good faith, making an effort to reach an agreement, and that once such agreements have been concluded they must be binding on both parties. Furthermore, the Committee observes that the dismissal of trade union leaders on the grounds of their function or legitimate trade union activities constitutes a serious violation of Article 1 of the Convention.

The Committee also recalls that in its observation in 2000 it had noted the comments on the application of the Convention transmitted by the Single Confederation of Workers (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Democratic Workers (CGTD) concerning enterprise, government and judicial practices which gave preference to collective accords with non unionized workers and disregarded existing collective agreements and trade unions. The Committee notes the Government’s indication that the rulings of the Constitutional Court and the Supreme Court of Justice comply with international undertakings, in accordance with the principles of the independence and supremacy of the law. The Committee emphasizes that the principles of collective bargaining have to be respected taking into account the provisions of Article 4 of the Convention concerning the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, and that direct negotiations with workers must not prejudice or weaken the position of trade unions, nor weaken the impact of collective agreements that have been concluded. The Committee requests the Government to ensure that these principles are respected and to inform it of any measures adopted in this respect.

Finally, the Committee recalls that for many years it has been referring to the need to recognize the right to collective bargaining of public employees. The Committee emphasizes that in accordance with the provisions of Convention No. 98, public servants not engaged in the administration of the State already should benefit from the right to collective bargaining. In this respect, the Committee takes note of the ratification of Conventions Nos. 151 and 154, which recognize the right to bargain collectively of public servants with limited exceptions. The Committee requests the Government to take measures to guarantee the right of public employees and officials to collective bargaining. The Committee requests the Government to provide information in its next report on any measure taken in this respect.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes with interest the report of the direct contacts mission which visited the country in February 2000. The Committee also notes the observations made by the Maritime Transport Workers Union (UNIMAR), the Single Confederation of Workers (CUT), the General Confederation of Democratic Workers (CGTD), the Confederation of Workers of Colombia (CTC), the Trade Union of Telecommunication Workers of Santa Fe de Bogotá (SINTRATELEFONOS), the Trade Union of Textile Industry Workers (SINTRATEXTIL) and the World Federation of Trade Unions (WFTU) regarding the application of the Convention and it requests the Government to forward its comments in this regard to the Committee.

Recognition of the right to collective
bargaining of public employees

The Committee notes with interest that, according to the report of the direct contacts mission, the President of the Republic undertook to ratify the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154). The Committee also notes with interest that, during the direct contacts mission, draft legislation was prepared guaranteeing the right of collective bargaining for public employees and the Government undertook to submit the above draft to the social partners and subsequently to Congress. The Committee hopes that when the consultations have been completed, the draft text will be submitted promptly to Congress. The Committee requests the Government to provide information on any progress achieved in this respect.

Recognition of the right of federations and
confederations to engage in collective bargaining

The Committee recalls that in its previous observation it requested the Government, in consultation with the social partners, to take measures to ensure that the right to collective bargaining is also recognized for federations and confederations. In this respect, the Committee notes that the Government informed the direct contacts mission that "federations and confederations, with the exception of the calling of strikes (a question which is addressed in the proposed amendments suggested by the mission), have the same powers as the trade unions (including the right to collective bargaining) under section 417 of the Substantive Labour Code; in addition, section 467 expressly refers to the right to collective bargaining of federations without forgetting that trade union central organizations have concluded national-level agreements". The Committee appreciates having received this clarification.

Requirements to engage in bargaining
at the industry or branch level

In its previous observation, the Committee requested the Government to take measures to amend the legislative requirement that industrial or branch unions must represent more than 50 per cent of the workers in an enterprise in order to represent them for the purposes of collective bargaining (section 376 of the Labour Code). In this respect, the Committee notes that the Government informed the direct contacts mission that "as regards section 376 of the Code, which relates to the requirement for the trade union to comprise more than half the enterprise’s workers, this refers to a situation in which the effects of the collective agreement apply to all workers; when no trade union (enterprise or industry) meets the legal conditions to negotiate on behalf of all the workers, it can negotiate on behalf of its members, even if there are not very many of them; the difference lies in the fact that when over a third of the workers in an enterprise belong to an enterprise union, the collective agreement applies to all workers whether they are unionized or not (section 471), while in the case of an industrial union this proportion is replaced by the membership of the majority of workers for the same effect to be achieved". The Committee appreciates having received this clarification.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report. The Committee also notes the comments presented by the General Confederation of Democratic Workers (CGTD), the Trade Union of Telecommunication Workers of Santa Fe de Bogotá (SINTRATELEFONOS), the Trade Union of Textile Industry Workers (SINTRATEXTIL) and the World Federation of Trade Unions (WFTU) regarding failure to implement collective agreements and acts of anti-trade union discrimination, and requests the Government to comment thereon.

1. The Committee recalls that for many years it has been emphasizing the need for the category of "public employees", those not engaged in the administration of the State, to benefit from the right to collective bargaining. In this connection, the Committee notes that the Government is examining the possibility of modifying the classification of public servants, by restricting the concept of public employees, above all for the lower echelons. The Committee firmly hopes that the Government will take measures as soon as possible to bring the legislation fully into conformity with the Convention, allowing all public servants who are not employed in the administration of the State to bargain collectively in respect of their employment conditions. The Committee requests the Government to inform it in its next report on all measures adopted accordingly.

2. In its previous observation, the Committee referred to the requirement for industrial or branch unions to comprise more than 50 per cent of the workers in an enterprise in order to be able to bargain collectively (section 376 of the Labour Code, paragraph supplemented by section 51 of Act No. 50). The Committee notes the Government's indication that this provision does not restrict the right to collective bargaining of industrial or branch unions and points out that, if the industrial union has a membership of more than 50 per cent of workers from a particular enterprise, it may take decisions by convening those unionized workers only, and not its total membership, from different enterprises. In this connection, the Committee considers that industrial or branch unions which do not cover more than 50 per cent of the workers in an enterprise should be able to bargain collectively, at least on behalf of their own members, especially in medium and large-sized undertakings. The Committee requests the Government to take steps to amend this provision as indicated and to provide information in its next report on all measures adopted in this regard.

3. Finally, in its previous observation, the Committee had requested the Government to inform it on the right of federations and confederations to bargain collectively. The Committee notes the Government's indication that: (i) first level trade union organizations hold the right to bargain collectively; (ii) second and third level organizations are authorized by law to advise affiliated trade unions in the process of bargaining; and (iii) considering the different activities undertaken by federations and confederations and that the Convention contains no explicit reference obliging the State to amend its legislation on this point, it considers that the current legal provisions may be maintained. On this matter, the Committee recalls that Article 4 of the Convention, regarding the promotion of collective bargaining, refers clearly to the right to collective bargaining of workers' organizations in general, with no exceptions. Given these conditions, the Committee requests the Government, in consultation with the social partners, to take measures to ensure that the right to collective bargaining is also recognized for federations and confederations.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee regrets that the Government in its report indicates only that there have been no changes and refers to its previous report. The Committee recalls that it had requested measures to ensure that the Government's restructuring policy did not give rise to acts of anti-union discrimination. The Committee asks the Government to inform it of any measures taken in this regard.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee regrets that the Government in its report indicates only that there have been no changes and refers to its previous report, without providing the information requested. The Committee must therefore repeat its previous observation which read as follows:

The Committee recalls that for many years it has been emphasizing the need for public employees who are not engaged in the administration of the State to benefit from the right to collective bargaining, and that in its previous observation it noted that a Bill guaranteeing this right for public employees had been submitted to the Congress of the Republic. In this respect, the Committee regrets to note that the Government states that the Congress of the Republic decided to shelve the Bill in question. Similarly, the Committee notes that the Government states that the Ministry of Labour is studying the various alternatives for granting such a right to public employees. The Committee expresses the hope that the Government will, as soon as possible, take measures to bring the legislation into conformity with the Convention. The Committee requests the Government to provide information in its next report on all measures adopted in this respect. Furthermore, the Committee recalls that in previous direct requests it referred to: (1) the need for industrial or branch unions to comprise more than 50 per cent of the workers in an enterprise in order to be able to bargain collectively (section 376 of the Labour Code, paragraph supplemented by section 51 of Act No. 50); and (2) the right for federations and confederations to bargain collectively. In this respect, while the Committee observes that the Government has not forwarded its observations on the questions raised, the Committee requests the Government to take measures to amend the legislation so as to guarantee industrial or branch unions which do not comprise more than 50 per cent of the workers concerned the possibility to bargain collectively, at least in representing their members. The Committee requests the Government to inform it in its next report of any measures adopted in this respect. Finally, the Committee requests the Government to inform it whether federations and confederations may bargain collectively and, if so, to indicate on what legal basis such a right is founded.

Furthermore, the Committee is addressing a direct request to the Government.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the report made by the Government and regrets to observe that no specific response has been provided to its comments on the measures adopted to ensure that, within the restructuring policy being conducted by the Government, acts of anti-union discrimination do not occur.

In this respect, the Committee requests the Government to provide information in its next report on whether, within the restructuring processes launched in the period covered by the report, complaints of acts of anti-union discrimination have been recorded and, if so, what follow-up action has been taken in relation to the complaints.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the report made by the Government.

The Committee recalls that for many years it has been emphasizing the need for public employees who are not engaged in the administration of the State to benefit from the right to collective bargaining, and that in its previous observation it noted that a Bill guaranteeing this right for public employees had been submitted to the Congress of the Republic.

In this respect, the Committee regrets to note that the Government states that the Congress of the Republic decided to shelve the Bill in question. Similarly, the Committee notes that the Government states that the Ministry of Labour is studying the various alternatives for granting such a right to public employees. The Committee expresses the hope that the Government will, as soon as possible, take measures to bring the legislation into conformity with the Convention. The Committee requests the Government to provide information in its next report on all measures adopted in this respect.

Furthermore, the Committee recalls that in previous direct requests it referred to: (1) the need for industrial or branch unions to comprise more than 50 per cent of the workers in an enterprise in order to be able to bargain collectively (section 376 of the Labour Code, paragraph supplemented by section 51 of Act No. 50); and (2) the right for federations and confederations to bargain collectively.

In this respect, while the Committee observes that the Government has not forwarded its observations on the questions raised, the Committee requests the Government to take measures to amend the legislation so as to guarantee industrial or branch unions which do not comprise more than 50 per cent of the workers concerned the possibility to bargain collectively, at least in representing their members. The Committee requests the Government to inform it in its next report of any measures adopted in this respect.

Finally, the Committee requests the Government to inform it whether federations and confederations may bargain collectively and, if so, to indicate on what legal basis such a right is founded.

Furthermore, the Committee is addressing a direct request to the Government.

[The Government is asked to report in detail in 1998.]

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and regrets that it has not replied specifically to its previous comments, which referred to:

- the measures adopted to ensure that no acts of anti-union discrimination occur in the context of the Government's restructuring policy;

- the requirement that industrial or branch unions must have the membership of more than 50 per cent of the workers of the enterprise in order to negotiate collectively (section 376 of the Code, as supplemented by section 51 of Act No. 50); and

- the possibility for federations and confederations to negotiate collectively.

With reference to the first point, the Committee once again requests the Government to provide information in its next report on the measures adopted or envisaged to ensure in practice the protection of workers in the public sector against acts of anti-union discrimination connected with the Government's restructuring policy.

With regard to the second point, the Committee once again requests the Government to take measures to ensure that its legislation guarantees that industrial or branch unions, which do not cover more than 50 per cent of the workers, have the right to bargain collectively, at least on behalf of their own members.

Noting that the legislation does not explicitly grant federations and confederations the right to negotiate collectively, the Committee once again requests the Government to inform it of cases in which federations and confederations have concluded collective agreements directly and if yes, to communicate the relevant agreements.

The Committee hopes the Government will provide detailed information on these matters in its next report.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report. The Committee also notes the discussions in the Conference Committee in 1996 and the report of the freedom of association mission undertaken from 7 to 11 October 1996, as requested by the Government in the Conference Committee.

The Committee recalls that for many years it has been emphasizing the need for public employees who are not engaged in the administration of the State to benefit from the right to collective bargaining. In this respect, the Committee notes with interest the information in the Government's report that a Bill has been submitted to the Congress of the Republic guaranteeing the right of collective bargaining to public employees.

The Committee expresses the firm hope that the Congress will adopt the Bill as soon as possible to bring the legislation into conformity with the Convention. The Committee requests the Government to keep it informed of any developments in this respect and to transmit the text of the Act in question as soon as it is adopted.

Furthermore, the Committee is addressing a request directly to the Government.

[The Government is asked to report in detail in 1997.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report, the information provided by a government representative at the Conference Committee in 1994 and the discussions that followed. The Committee recalls that its previous comments referred to:

- the measures adopted to ensure that no acts of anti-union discrimination occur in the context of the Government's restructuring policy;

- the requirement that industrial or branch unions must have the membership of more than 50 per cent of the workers of the enterprise in order to negotiate collectively (section 376 of the Code supplemented by section 51 of Act No. 50).

With regard to the first point, the Committee again asks the Government to provide information in its next report on the measures adopted or envisaged to ensure in practice the protection of workers in the public sector against acts of anti-union discrimination connected with the Government's restructuring policy.

With regard to the requirement that more than 50 per cent of the workers in the enterprise must belong to an industrial or branch union in order for it to bargain collectively, bearing in mind that under section 357 there may not be more than one trade union in an enterprise, institution or establishment, the Committee considers that to prevent industrial or branch unions from negotiating collectively unless they meet the above requirement of 50 per cent, is to deprive the workers of that enterprise of the benefits of negotiating their conditions of employment collectively.

In these circumstances, the Committee draws the Government's attention to the principle that problems may arise when the law stipulates that "a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members" (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 241).

The Committee asks the Government to take the necessary steps to ensure that its legislation guarantees that trade union organizations other than works unions, which do not cover more than 50 per cent of the workers, have the right to bargain collectively, at least on behalf of their own members.

The Committee observes that the legislation does not expressly grant federations and confederations the right to negotiate collectively. It asks the Government to indicate if this right is otherwise recognized for federations and confederations and, if so, to inform it of cases in which federations and confederations have concluded collective agreements directly.

The Committee hopes that in its next report the Government will provide information on the questions raised above.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and regrets that it has not replied specifically to its previous comments, which referred to:

- the measures adopted to ensure that no acts of anti-union discrimination occur in the context of the Government's restructuring policy:

- the requirement that industrial or branch unions must have the membership of more than fifty per cent of the workers of the enterprise in order to negotiate collectively (section 376 of the Code, as supplemented by section 51 of Act No. 50); and

- the possibility for federations and confederations to negotiate collectively.

With reference to the first point, the Committee once again requests the Government to provide information in its next report on the measures adopted or envisaged to ensure in practice the protection of workers in the public sector against acts of anti-union discrimination connected with the Government's restructuring policy.

With regard to the second point, the Committee once again requests the Government to take measures to ensure that its legislation guarantees that trade union organizations other than works unions, which do not cover more than 50 per cent of the workers, have the right to bargain collectively, at least on behalf of their own members.

Noting that the legislation does not explicitly grant federations and confederations the right to negotiate collectively, the Committee once again requests the Government to inform it of cases in which federations and confederations have concluded collective agreements directly and if yes to communicate the relevant agreements.

The Committee hopes that the Government will provide detailed information on these matters in its next report.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report, the information supplied by a Government representative at the Conference Committee in 1994 and the subsequent discussions.

The Committee recalls that its previous comments concerned:

-- the lack of protection against acts of anti-union discrimination for members of mixed trade unions (made up of "official workers" and "public employees", in accordance with sections 57 and 58 of Act No. 50 of 1990); and

-- the prohibition placed on unions of "public employees" from concluding collective agreements (sections 414(4) and 416 of the Labour Code).

With regard to the issue of anti-union discrimination, the Committee notes with satisfaction that in December 1993 the Constitutional Court ruled that section 409 of the Labour Code which limited trade union immunity to public employees and official workers with executive, confidential or management duties was in breach of the 1991 Political Constitution and therefore null and void. It thereby removed the existing restriction on the full enjoyment by all trade union leaders of trade union privileges. The Committee asks the Government to provide information on the adoption of any text repealing the above provision.

With regard to the prohibition placed on "public employees" from bargaining collectively, the Committee takes note of the Government's observations and must again insist that it take steps to ensure that the legislation is amended so that "public employees" who are not engaged "in the administration of the State" are not denied the right to negotiate their conditions of employment collectively, in accordance with Articles 4 and 6 of the Convention.

The Committee notes with interest the statements made by a government representative at the Conference Committee in 1994, to the effect that the Government undertook to pursue its efforts to align the legislation with the requirements of ratified Conventions, possibly with technical cooperation from the ILO. The Committee hopes that in its next report the Government will keep it informed of any resulting changes in the legislation. The Committee is addressing a request directly to the Government on the requirements for collective bargaining by industrial or branch unions.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and recalls that its previous comments referred to the prohibition placed on unions of "public employees" from concluding collective agreements (sections 414(4) and 416 of the Labour Code).

The Committee takes due note of the information provided in the report that the Government convened a tripartite dialogue committee to analyse various aspects of the current national legislation, including the issue of collective bargaining in the public sector. Nevertheless, the Committee regrets to note that the Bill to amend various provisions of labour law submitted recently by the Government to Congress does not cover sections 414(4) and 416 of the Labour Code.

The Committee once again urges the Government to take measures to amend the legislation so that "public employees", with the only possible exception of those who are engaged "in the administration of the State", are not denied the right to negotiate collectively their terms and conditions of employment, in accordance Articles 4 and 6 of the Convention.

The Committee hopes that the Government will keep it informed in its next report of the changes made to the legislation in this respect.

The Committee is addressing a direct request to the Government.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and recalls that its previous comments referred to:

- lack of protection against acts of anti-union discrimination for workers who belong to mixed organizations (of public employees "empleados públicos" and official workers "trabajadores oficiales"), (sections 57 and 58 of Act No. 50 of 1990);

- the ban on the negotiation of collective agreements by organizations of public employees (sections 414(4) and 416 of the Labour Code).

It must be stressed that in Colombia, public servants are either "public employees" or "official workers". The former are nominated and terminated unilaterally, their relations with the public administration are regulated by statute, they have no right to negotiate collectively their terms and conditions of employment, even though they are not public servants in the administration of the State in the sense of Article 6 of the Convention. The latter generally are employed in the commercial and industrial state enterprises, have contractual relations with the administration and can bargain collectively.

With regard to the issue of anti-union discrimination, the Government states that although public employees may join mixed organizations and hold trade union office, pursuant to section 409 of the Labour Code, they do not enjoy trade union immunity. Official workers belonging to mixed unions, on the other hand, do benefit from trade union immunity.

The Committee recalls that all public employees who are not engaged in the administration of the State should be covered by the protection against acts of anti-union discrimination. It asks the Government to take measures to ensure that its legislation is amended along the lines mentioned above.

With regard to the right of collective bargaining of public employees, the Government again states that Presidential Directive No. 38 of 26 December 1990 maintains the prohibition placed on public employees from concluding collective agreements (section 416 of the Labour Code).

In this connection, the Committee recalls once again that under section 414(4) of the Code, one of the functions of unions of public employees is to submit to the appropriate heads of the administration humble petitions containing requests concerning all its members, but not draft collective agreements. The Committee is bound to stress that when it ratified the Convention, the Government accepted that it had to take steps to encourage and develop voluntary negotiation between the social partners, which means that it must refrain from intervening in such a way as to restrict the exercise of this right. The Committee therefore asks the Government to take measures, in consultation with the social partners, to amend the legislation so that "public employees" with the possible exception of those engaged in the administration of the State enjoy the guarantees laid down in the Convention regarding the right of workers to negotiate collectively their terms and conditions of employment.

The Committee asks the Government in its next report to provide information on any changes in the legislation in this respect.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the Government's report, the discussions that took place at the Conference Committee in 1991 and the report on the direct contacts mission conducted in Colombia from 16 to 20 September 1991.

The Committee observed that section 57 of Act No. 50 of 28 December 1990 amends section 406 of the Labour Code so as to permit the establishment of "mixed organisations of official employees and public employees, which, in their activities, shall take into account the limitations set out by law regarding the legal status of their members in respect of the administration". The Committee requested the Government to indicate whether, on the basis of this provision, workers who are members of organisations of public employees and of mixed organisations (of public employees and official employees) enjoy the protection set out in the Labour Code (or any other provisions of laws or regulations) against acts of anti-union discrimination.

With regard to the right to collective bargaining by organisations of public employees, the Committee recalled that the Convention covers all workers, the only possible exception being public servants who are engaged in "the administration of the State"; it requested the Government to take measures to amend the legislation (sections 414 and 416 of the Labour Code) in order to grant to those "public employees" who are not engaged in the administration of the State, the guarantees set out in the Convention in respect of the negotiation of collective agreements. The Committee asked the Government to report on any developments in this respect. Furthermore, the Committee notes the information contained in the mission report, to the effect that a Presidential Directive (No. 38 of 26 December 1990) confirms the prohibition placed on unions of public employees from concluding collective agreements (section 416 of the Labour Code).

The Committee again requests the Government to provide detailed information in its next report on the questions raised and expresses the hope that it will be able to note concrete improvements in the application of the Convention in the near future.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the Government's report, which only covers the period from July 1988 to June 1989.

The Committee considered that the sanctions laid down for acts of anti-union persecution (fines of from one to 40 times the miminum monthly wage) should be further increased in order to be sufficiently dissuasive. In this context, the Committee notes with satisfaction that section 39 of Act No. 50, of 28 December 1990, has amended section 354 of the Labour Code so as to increase the amount of the sanctions that are applicable in the event of acts that interfere with the right of association. These sanctions now provide for a fine equivalent to from five to 100 times the highest minimum monthly wage, without prejudicing the penal sanctions that are applicable by virtue of section 292 of the Penal Code (imprisonment of from one to five years) for violations of the rights of assembly and association.

The Committee also shared the conclusion of the Committee on Freedom of Association at its meeting in November 1988, when examining Case No. 1465 (see the 259th Report, paragraphs 675 to 678) in which, with reference to the distinction between "public servants" (who may be freely appointed and dismissed and are not entitled to enter into collective agreements) and "official employees" in commercial and industrial state enterprises, it emphasised that within the framework of Conventions Nos. 87 and 98, the legal status of "public servants" in the Colombian legislation is not satisfactory, since workers in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, and should enjoy suitable protection against acts of anti-union discrimination.

In this connection, the Committee notes that section 57 of Act No. 50 amends section 406 of the Labour Code so as to permit official employees to "establish mixed organisations of official employees and public employees, which, in their activities, shall take into account the limitations set out by law regarding the legal status of their members in respect of the administration". The Committee requests the Government to indicate whether, on the basis of this provision, workers who are members of organisations of public employees and of mixed organisations (of public employees and official employees) enjoy the protection set out in the Labour Code, or in other regulations issued thereunder against acts of anti-union discrimination.

With regard to the right to collective bargaining of organisations of public employees, the Committee points out that the Convention deals with the position of all workers, with the only possible exception being public servants, who are engaged "in the administration of the State". It requests the Government to take measures to amend the legislation (sections 414 and 416 of the Labour Code) in order to grant those "public employees" who are not engaged in the administration of the State, the guarantees set out in the Convention in respect of the negotiation of collective agreements. The Committee requests the Government to report any development in this respect.