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

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

Other comments on C098

Observation

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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.