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

The Committee notes the Government’s report. The Committee also notes the discussions in the Conference Committee on the Application of Standards in 2004. Furthermore, the Committee notes the reports of the Committee on Freedom of Association on the various current cases relating to Colombia adopted by the Governing Body at its sessions in March, June and November 2004.

The Committee further notes the comments on the application of the Convention made 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 and by the International Confederation of Free Trade Unions (ICFTU) in a communication of 23 July 2004.

In the first place, the Committee observes that the above organizations refer to numerous acts of violence against trade union leaders and trade unionists (the ICFTU reports 20 murders of trade union leaders or trade unionists between January and April 2004, death threats against leaders of the ANTHOC, ASEDAR, SINTRAMUNICIPIO, SINALTRAINAL (Barranquilla, Palmira and Cali branches), SINTRAEMCALI and SINTRAMINERCOL trade union oganizations, the break-in at the premises of the Rural Workers’ Association of Arauca, the attempted murder with firearms of a leader of the SINTRAMETAL trade union organization, Yumbo branch, and the kidnapping of the Vice-President of the Association of Departmental Employees (ADEA); the trade union federations, CUT, CGTD and CTC, and the ICFTU refer to the issue of the impunity enjoyed by the perpetrators of acts of violence against trade union leaders and trade unionists in 95 per cent of cases and recall that social protest is subject to various forms of repression.

In this respect, the Committee notes that the Government provides information on Case No. 1787, which is currently before the Committee on Freedom of Association and relates to the murders of trade unionists and trade union leaders, presumably for their involvement in trade union activities. The Government also indicates that some of them were not murdered as a result of their trade union activities. The Government adds that regional agreements have been concluded (in Valle del Cauca, Valledupar, Bucaramanga, Arauca, Barrancabermeja, Barranquilla, Medellín and Risaralda) relating to the subjects of prevention, protection, guarantees for freedom of association and measures to combat impunity, and that protective measures have also been taken (for example, the provision of national permits so that those under threat can leave the area concerned) for leaders and/or the provision of armouring for the premises of the ANTHOC, SINALTRAINAL and SINTRAMINERCOL trade union organizations.

The Committee notes with grave concern the persistent climate of violence in the country and the conclusions of the Committee on Freedom of Association in Case No. 1787 in November 2004, and of the Committee on the Application of Standards, citing further murders and other acts of violence. As emphasized in the conclusions of the Committee on the Application of Standards, the Committee of Experts recalls that workers’ and employees’ organizations can only exercise their activities freely and effectively in a climate free of violence and it once again urges the Government to guarantee the right to life and security, and to reinforce urgently the necessary institutions in order to put an end to the situation of impunity, which is a serious obstacle to the exercise of the trade union rights guaranteed by the Convention. The Committee notes that the climate prevailing in the country is not favourable to the exercise and development of trade union activities more generally.

The Committee recalls that it has been commenting for many years on certain provisions of the law concerning:

-  The prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code).

The Committee notes the Government’s indication that: (i) the legislation has followed for a long time the tendency espoused by many other legislations to strengthen trade unionism at the enterprise level and that this is the outcome of the conviction that this approach is most suited to the purposes of strengthening the trade union movement and collective bargaining and that focusing on these organizations is not contrary to the Convention; (ii) the legislator intended that the provision of special protection and the strengthening of the lower levels of the trade union movement were not an obstacle to the promotion of trade unionism at the level of federations and confederations, as illustrated by the fact that the law has afforded such federations and confederations all the same attributes as those accorded to enterprise trade unions; and (iii) this situation, to which the sole exception is the calling of strikes, has resulted in strong federations and confederations which are sufficiently representative of workers’ rights. In this respect, the Committee considers that higher level organizations should be able to have recourse to strike action in cases of disagreement with the Government’s social and economic policies. The Committee therefore requests the Government to take measures to amend section 417(i) of the Labour Code.

-  The prohibition on strikes, not only in essential services in the strict sense of the term, but also in a wide range of services which are not necessarily essential (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) and the possibility of dismissing trade union officers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even where the unlawfulness of the strike rests on requirements which are contrary to the principles of freedom of association.

In this respect, the Committee notes the Government’s indication that: (1) in Colombia the concept of public services is understood as those provided by the State directly or through private entities to address the needs of the population and in which the general interest is implicit; (2) the legislator, based on the criterion of general interest, indicated in the Labour Code some of the activities which, in view of the situation of Colombia, give expression to and encompass the general interest; (3) none of the Conventions on freedom of association and collective bargaining explicitly refer to the right to strike, and even less to the concept of essential services; and (4) the Political Constitution of 1991 was intended to take up the ILO concept of essential services as merged with the Colombian legal tradition, for which reason Article 53 refers to essential public services with a view to prohibiting the right to strike in them; according to the Government, this is a concept which cannot be divorced from its origin, which goes well beyond labour matters.

In this regard, the Committee recalls that in its General Survey of 1994 it indicated that, under Article 3, paragraph 1, of Convention No. 87, "the right to organize activities and to formulate programmes is recognized for workers’ and employers’ organizations. In the view of the Committee, strike action is part of these activities under the provisions of Article 3; it is a collective right exercised, in the case of workers, by a group of persons who decide not to work in order to have their demands met. The right to strike is therefore considered as an activity of workers’ organizations within the meaning of Article 3" and "in the light of the above, the Committee confirms its basic position that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87" (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 149 and 151). With regard to services considered to be essential in which the right to strike may be limited or even prohibited, the Committee emphasized that "the principle whereby the right to strike may be limited or even prohibited in essential services would lose all meaning if national legislation defined these services in too broad a manner. As an exception to the general principle of the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively: the Committee therefore considers that essential services are only those the interruption of which would endanger the life, personal safety or health or the whole or part of the population" (see General Survey, op. cit., paragraph 159). In view of the above, the Committee requests the Government to take measures to amend the legislative provisions in question and to provide information in its next report on any measure adopted in this respect.

-  The authority of the Minister of Labour to refer a dispute to arbitration when a strike exceeds a certain period (section 448(4) of the Labour Code).

In this regard, the Committee notes the Government’s confirmation that the legislation permits the Minister to adopt this measure, but that it is necessary to take into account that: (1) in practice, it is a provision which can be said to have been used on very few occasions in the labour history of the country; (2) the provision sets out, not an obligation for the Minister, but a faculty, and in the event that the Minister chooses to give effect to this provision, the measure adopted by the will of the administration can be appealed through the courts; and (3) the fact that the Minister may submit the dispute to arbitration does not mean that workers are denied recourse to the court of arbitration. The Committee considers that the use of compulsory arbitration to bring an end to a strike is only acceptable when it has been requested by the two parties involved in the dispute or in cases in which the strike may be restricted or even prohibited, that is in cases of dispute within the public service involving public servants exercising authority in the name of the State or essential services in the strict sense of the term, namely, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. In these conditions, and taking into account the Government’s indication that this ministerial power is little used in practice, the Committee requests the Government to take measures to repeal this provision of the Labour Code and to provide information in its next report on any measure adopted in this respect.

Finally, the Committee recalls that in its previous observation it noted that the World Confederation of Labour (WCL) had sent comments on the application of the Convention referring to the legislative matters raised by the Committee and the situation of violence in the country, which means that the exercise of freedom of association involves great risk. With regard to these matters, the Committee refers to the comments made above in the present observation. The WCL also indicates that: (1) the official responsible for registering trade unions is competent to make comments and has been granted the power to oppose registration; and (2) employers are permitted to oppose the registration of a trade union organization or to impugn the election of a new trade union board. With regard to the registration of trade unions, the Committee notes that, notwithstanding this power to oppose registration, the Government has indicated that there is no difficulty in the establishment of trade union organizations and that the registration of a trade union organization is an administrative act which can be appealed through the courts. The Committee recalls that problems of compatibility with the Convention also arise where the registration procedure is long and complicated or when registration regulations are applied in a manner inconsistent with their purpose and the competent administrative authorities make excessive use of their discretionary powers (see General Survey, op. cit., paragraph 75). The Committee therefore requests the Government to provide further information on the practical application of the registration procedure and, in particular, the number of cases where registration has been denied, the reasons for such refusal, whether the refusal was appealed and the final outcome of the appeal. It further asks the Government to provide comments with its next report on the other observations made by the WCL.