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

The Committee notes that it has not received the Government's report. However, it notes the long discussions which took place in the Conference Committee in June 1990, and Act No. 50, of 28 December 1990, amending the Substantive Labour Code.

I. The Committee notes with satisfaction that Act No. 50 has made a number of improvements to the previous provisions as regards freedom of association and collective bargaining, some of which had been the subject of comments by the Committee of Experts or the Committee on Freedom of Association:

- the machinery and formalities for the registration of trade union organisations have been accelerated (new sections 361 and following);

- it has been established that all trade union organisations, by the mere fact of their establishment and dating from their constituent assembly, enjoy legal personality (new section 364);

- the number of workers and trade union officers protected by trade union immunity (new section 406) and the scope of protection against interference with the right of association in trade unions (new section 354) has been approved;

- refusal to bargain with trade union organisations is illegal and punishable by fines (new section 354(c));

- it is forbidden to conclude collective agreements with non-unionised workers when the trade union or trade unions represent more than one-third of the workers in an enterprise (paragraph added to Chapter II, Title II, third part of the Code);

- official employees are permitted to establish mixed trade union organisations representing both official employees and public servants (new section 414, final paragraph).

II. Nevertheless, the Committee regrets that Act No. 50 has omitted to take into account certain comments that the Committee has been making for many years on the provisions of the legislation that are incompatible with the Convention. These comments concern the following points:

1. The establishment of workers' organisations (Article 2 of the Convention)

- the requirement that 75 per cent of members are Colombian to establish a trade union (section 384 of the Labour Code), whereas it should be possible for workers to establish organisations of their own choosing without distinction on grounds such as nationality.

2. Interference in the internal administration of trade unions (Article 3 of the Convention)

(a) Financing, administration and meetings

- the supervision of the internal management and meetings of unions by public servants (section 486 of the Labour Code and section 1 of Decree No. 672 of 1956), strict rules for trade union meetings (Decree No. 2655 of 1954) and the presence of authorities at general assemblies convened to vote upon the calling of a strike (new section 444, last paragraph, of the Labour Code).

(b) Election and suspension of trade union officers

- the requirement that persons be Colombian for election to trade union office (section 384 of the Labour Code and section 18(a) of Resolution No. 4 of 1952);

- the election of trade union officers has to be submitted for approval by the administrative authorities (section 21 of Resolution No. 4 of 1952 and sections 10 to 13 of Decree No. 1469 of 1978);

- the suspension for up to three years, with loss of trade union rights, of trade union officers who have been responsible for the dissolution of their unions (new section 380(3) of the Code);

- the requirement that persons belong to the trade or occupation in order to be considered eligible for election to trade union office (sections 388(1)(c) and 432(2) of the Labour Code; section 18(c) of Resolution No. 4 of 1952, for first-level trade unions; and section 422(1)(c) of the Labour Code, for federations).

3. Right of trade unions to further and defend the interests of the workers (Article 3 of the Convention)

- the prohibition on trade unions from taking part in political matters (sections 12 and 50(a) of Resolution No. 4 of 1952; section 16 of Decree No. 2655 of 1954; and section 379(a) of the Labour Code);

- the prohibition on trade unions from holding meetings on political matters (section 12 of Resolution No. 4 of 1952);

- the prohibition on federations and confederations from calling a strike (section 417(a) of the Labour Code);

- prohibition of strikes not only in the essential services in the strict sense of the term but also in a very wide range of public services which are not necessarily essential (section 430 and new section 450(1)(a) of the Labour Code and Decrees Nos. 414 and 437 of 1952; 1543 of 1955; 1593 of 1959; 1167 of 1963; 57 and 534 of 1967);

- the prohibition of strikes when they are called for the purpose of requiring the public authorities to take action in relation to matters which fall within their exclusive reserve (new section 450(1)(g));

- the power of the Minister of Labour to refer to a vote by all the workers in an enterprise the question of whether or not they wish to submit persistent differences of view to arbitration once a strike has been called (new section 448(3) of the Code);

- the power of the Minister to terminate a dispute lasting more than 60 days and the power of the President to terminate a strike which is affecting the interests of the national economy and to submit disputes to compulsory arbitration (new section 448(4) of the Labour Code, Decree No. 939 of 1966, as amended by Act No. 48 of 1968, and section 4 of Act No. 48 of 1968);

- the prohibition of strikes, subject to administrative penalties (the suspension of the legal personality of trade unions) and sentences of imprisonment, in cases where a state of emergency has been declared (examples of the application of this prohibition are Decree No. 2004 of 1977 and Decrees Nos. 2200 and 2201 of October 1988);

- the possibility of dismissing trade union officers who have intervened or participated in an illegal strike (section 450(2) of the Labour Code).

4. Suspension and dissolution by administrative authority (Article 4 of the Convention)

- the withdrawal or suspension by administrative authority of the legal personality of a trade union in the event of violation of the provisions respecting trade unions (section 380 of the Labour Code) or in the event of a strike that is declared illegal (new section 450(3) of the Labour Code).

The Committee had noted that a Bill was to be submitted in the near future to the Congress of the Republic to amend section 379 of the Labour Code, which prohibits trade unions from intervening in political matters. The Committee requests the Government to supply information on any development in the situation in this connection.

Despite the progress that has been noted in this observation, the Committee emphasises that there remain many provisions that are still not in accordance with the Convention and requests the Government to take the necessary measures as soon as possible to bring the law and practice into full conformity with the Convention. The Committee reminds the Government that the ILO is as its disposal to provide assistance in the revision of the legislation.

[The Government is asked to supply full particulars to the Conference at its 78th Session and to report in detail for the period ending 30 June 1991.]