Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee takes note of the Government's report and the discussions that took place at the Conference Committee in 1992. The Committee noted from the Government's previous report that there had been some progress in the legislation but pointed out that there were still a number of provisions which were not in conformity with the Convention, namely:

- the requirement that, to form a trade union, two-thirds of the members must be Colombian (section 384 of the Labour Code);

- the supervision of the internal management and meetings of unions by public servants (section 486 and section 1 of Decree No. 672 of 1956);

- the presence of the authorities at general assemblies convened to vote upon the calling of a strike (new section 444, last paragraph, of the Code);

- the requirement of Colombian nationality for election to trade union office (paragraph 384 of the Code);

- 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 must belong to the trade or occupation in order to be eligible for trade union office (sections 388(1)(c) and 432(2) of the Code, and section 422(1)(c) of the Code for federations);

- the prohibition on federations and confederations from calling a strike (section 417(1) of the Code);

- the 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 (new section 450(1)(a) of the Code and Decrees Nos. 414 and 437 of 1952; 1543 of 1955; 1593 of 1959; 1167 of 1963; 57 and 534 of 1967);

- various restrictions on the right to strike and the power of the Minister of Labour and the President to intervene in the dispute (sections 448(3) and (4), 450(1)(g), of the Code, and Decree No. 939 of 1966 as amended by Act No. 48 of 1968, and section 4 of Act No. 48 of 1968);

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

The Committee expresses its concern at the serious situation of violence confronting Colombia, which in general makes it impossible for the normal living conditions of the population to be maintained and prevents the full exercise of the trade union activities.

The Committee notes the information supplied by the Government at the Conference Committee to the effect that:

- the amendment of section 384 (the requirement that two-thirds of the members must be Colombian for a trade union to be formed) can be discussed when the standing tripartite labour committee provided for in the National Constitution is set up;

- with regard to the requirement that persons must belong to the trade or occupation to be eligible for trade union office (sections 388(1)(c), 432(2) and 422(1)(c) of the Code), the Government states that it is open to dialogue with the trade union confederations and has requested the ILO's technical assistance in this respect;

- as regards the prohibition of strikes by federations and confederations, the Government states that a Bill is before Congress on this subject;

- the new Constitution of 1991 only lays down restrictions on the right to strike in essential public services, to be defined by the legislature in a future law, and there will be tripartite consultation on the subject.

With regard to the power of the Minister of Labour and the President of the Republic to intervene in disputes (sections 448(3) and (4) and 450(1)(g) of the Code) by convening a compulsory arbitration tribunal, the Committee emphasizes, as has the Committee on Freedom of Association on several occasions (see 270th, 275th and 284th Reports, Cases Nos. 1434, 1477 and 1631 (Colombia), paras. 256, 299 and 398 respectively), that the right to strike can only be subject to heavy restrictions (such as the imposition of compulsory arbitration in strikes) in essential services in the strict sense of the term, that is in those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

As regards the possibility of dismissing trade union officers who have intervened or participated in an unlawful strike (section 450(2) of the Code), the Committee agrees with the Government's statement that the ILO supervisory bodies recognize the legitimacy of dismissal in cases of unlawful strikes. The Committee none the less points out that, when a strike is declared unlawful on the basis of a national standard which contravenes the principles of freedom of association, the dismissal of trade union officials, even if it is lawful, would be contrary to the Convention.

With regard to the provisions which allow the internal management of trade unions and trade union meetings to be supervised by public servants, the Committee notes from the information contained in the Government's report that the Political Constitution of 1991 repealed Decree No. 672 of 1956 (section 1).

With regard to the provision which authorizes suspension of trade union officers who have been responsible for the dissolution of a union (section 380(3)), the Committee notes that, according to the Government, this provision was amended by section 52 of Act No. 50 of 1990 under which the power to dissolve a trade union is conferred on the judicial authority and that the names of the persons responsible shall be stated.

As regards the first point, the Committee observes that although Decree No. 672 of 1956 has been repealed by the Constitution, section 486 of the Code is still in force. As regards the second point, the Committee observes that section 380(3) of Act No. 50 of 1990 to which the Government refers, corresponds to section 380(4) of the Code, and there has been no change in the wording. This provision suspends for up to three years the right of association of trade union leaders who have been found responsible by the judicial authority of dissolving a trade union.

The Committee once again asks the Government to indicate in its next report whether the provision contained in section 366(4)(c) of the Code (amended by section 46 of Act No. 50 of 1990), whereby an application for registration by a new works union may be rejected, applies if the trade union seeking registration has a greater number of members than the trade union that is already registered.

With reference to section 389 of the Code which provides that neither members representing the employer before his workers nor members of the top management of an enterprise can be members of the Executive of a trade union, the Committee once again requests the Government to provide information on the scope of this provision since, according to the federations, employers unilaterally determine who shall represent them and this has given rise to abuse.

The Committee hopes that in amending and drafting the above laws, account will be taken of the comments it has been making for several years. It asks the Government to continue to take steps within the framework of the standing tripartite committee and, should it so wish, with technical assistance from the ILO, to bring its legislation into closer conformity with the Convention, and to keep it informed of further developments.

The Committee is also addressing a direct request to the Government.