Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments made on the application of the Convention by the Single Confederation of Workers of Colombia (CUT), the General Confederation of Workers (CGT) and the Confederation of Workers of Colombia (CTC), dated 13 June 2008; by the CGT in a communication of 19 August 2008; the CTC in a communication of 22 August 2008; the CUT in communications dated 28 January, 13 June and 27 August; and the CUT and the CTC jointly in a communication dated 31 August. These communications refer to matters that are under examination by the Committee, and particularly to acts of violence against trade union leaders and members, including murders, kidnappings, attempted murder and disappearances; the grave impunity surrounding such acts; the use of associated labour cooperatives and other forms of contracts which make it impossible for workers to establish or join unions; the arbitrary refusal by the authorities to register new trade unions, new statutes or the executive committees of unions; and the prohibition of the exercise of the right to strike in certain services which go beyond essential services. The Committee also notes the comments of the International Trade Union Confederation (ITUC) of 29 August 2008, which are being translated. The Committee notes the Government’s reply to the communication by the CUT dated 28 January 2008. It requests the Government to provide its comments on all the observations made by trade unions.

The Committee notes the discussions in the Conference Committee on the Application of Standards in 2008. It also notes the reports of the Committee on Freedom of Association on various cases that it is examining concerning Colombia, adopted at its sessions in March, June and November 2008.

Trade union rights and civil and political liberties

The Committee notes that the comments made by the CUT, CGT and CTC refer to the rise in the rate of murders of trade union leaders and members in 2008, amounting to ten trade union leaders and 30 trade union members. They also report an increase in the number of death threats. The trade union confederations recognize the efforts made by the Government to provide security to trade union leaders and members, but consider that they are not sufficient. They refer once again to the stigmatization of the trade union movement as sympathizing with the guerrillas and movements on the extreme left, which leaves them in a grave situation of vulnerability.

In this respect, the Committee notes the Government’s indication that during the course of 2007 the Government programme of protection for persons under threat took measures to the value of $13 million out of a total of $40 million. These measures were intended to protect the members of the trade union movement, who account for 20 per cent of the beneficiaries. For 2008, the investment budget is estimated at $45 million and up to June 2008 had benefitted 1,466 trade unionists, or 18 per cent of beneficiaries.

The Government adds that: (1) the trade union confederations were informed of the requirement for department police commanders to submit monthly reports to the Administrative Security Department, the Office of the Public Prosecutor General of the Nation and trade union leaders on the situation with regard to threats and the protection of trade unionists within their jurisdiction; and (2) a virtual network mechanism will be established to deal with risk alerts in real time in the same way as for mayors and councillors.

In this regard, while appreciating all the measures adopted by the Government, and particularly the increase in funding for the protection of trade union leaders and members, the Committee notes with deep concern the rise in the number of trade union leaders and members who have been murdered. The Committee emphasizes the need to eradicate violence so that workers’ and employers’ organizations can exercise their activities in full freedom. The Committee once again firmly urges the Government to continue taking all the necessary measures to guarantee the right to life and safety of trade union leaders and members so as to allow the due exercise of the rights guaranteed by the Convention.

With reference to the measures to combat impunity, the CUT, CGT and CTC recognize the efforts made by the Office of the Prosecutor General of the Nation to proceed with investigations into cases of grave violations of the human rights of trade unionists, but emphasize that only a very low percentage of investigations reach the courts and result in the conviction of those responsible. They also emphasize the lack of information on the situation of the proceedings in a large number of complaints of acts of violence against trade unions and that investigations are not systematic. The trade union organizations further regret that the decongestion courts are not of a permanent nature.

The Committee notes the Government’s indication in this respect that the national general budget for 2008 authorized the Office of the Prosecutor General to increase its personnel by 2,166 officials, which will mean that the special subunit for cases of trade unionists could increase in size to 19 prosecutors (it previously had 13). The Government adds that it will continue offering rewards of up to US$250,000 for information leading the capture of those responsible for crimes against trade unionists. It adds that Act No. 599 of 2000 deems the murder of trade unions leaders to be aggravated homicide, but not the murder of members of the trade union movement. For this reason, the Government submitted to the legislature Bill No. 308 in June 2008 seeking to increase sentences from 17 to 30 years for the murder of trade union members and to impose fines of up to 300 minimum wages on employers which restrict freedom of association. Moreover, at the request of the national Government, the Higher Judicial Council, through the decision of 25 June 2008, made the three decongestion courts established in July 2007 permanent. These courts have been devoted exclusively to ruling on cases of violations of the rights of trade unionists, issuing 44 sentences in 2007 and 24 up to July 2008.

The Committee also notes the Government’s indication that the monthly report on the protection of trade union leaders and members and on impunity was presented to the Inter-Institutional Commission on the Human Rights of Workers, held on 29 July 2008, which included the participation of representatives of workers, employers, the Government and the ILO representative in Colombia. According to the Office of the Prosecutor General, of a total of 117 convictions, it was found in 21 cases that the reason for the acts of violence was the trade union activity of the victim. Under the terms of these 117 sentences, 192 persons were convicted and 128 imprisoned. Of the total of 117 convictions, 115 were handed down during the term of the present Government and 68 were issued over the past three months as a result of the establishment of decongestion courts. Of the 192 convictions, responsibility was found to lie with the public authorities in 15 cases, with the Self-Defence Units of Colombia in 93 cases, with the guerrillas in 24 cases, with a group outside the law in one case, with a trade unionist in one case, with common delinquents in 56 cases and with the Aguilas Negras (an emerging group) in two cases.

The Committee notes that in its conclusions in 2008 the Committee on the Application of Standards, while noting the efforts made by the Office of the Public Prosecutor of the Nation to secure progress in the investigation of serious human rights violations against trade unionists, as well as the appointment of three judges especially dedicated to hearing cases of violence against trade unionists (decongestion courts), expressed its concern at the increase in acts of violence against trade unionists in the first half of 2008 and urged the Government to take further steps to reinforce the available protection measures and to ensure that investigations of murders of trade unionists are more effective and expeditious.

The Committee notes all the measures adopted by the Government and the efforts made, which are recognized by trade union organizations, to carry out investigations of violations of the human rights of trade unionists. Nevertheless, it regrets that the number of convictions continues to fall and that a large number of investigations are only at the preliminary stages. Under these conditions, the Committee requests the Government to continue taking all the measures possible to carry forward and facilitate all investigations relating to acts of violence against the trade union movement and expresses the firm hope that the measures adopted recently concerning the appointment of new prosecutors and judges will reduce the situation of impunity and will clarify the acts of violence committed against trade union leaders and members, and result in the apprehension of those responsible. The Committee emphasizes the role played by the decongestion judges and hopes that they will continue discharging their duties.

Furthermore, the Committee recalls that it requested the Government to keep it informed of the manner in which Act No. 975 on justice and peace is applied, particularly in cases involving trade union leaders and members. The Committee notes that, according to the trade union organizations, paramilitaries who have submitted to the rule of law have provided very little information on the murder of trade unionists and trade union leaders. The Committee once again requests the Government to provide the information requested.

Pending legislative and practical matters

The Committee recalls that it has been making comments, in some instances for many years, on the following matters.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. The Committee referred previously to the use of various types of contractual arrangements, such as associated work cooperatives, service contracts and civil or commercial contracts which cover actual employment relationships and are used for the performance of functions and work that are within the normal activities of the establishment and under which workers may not establish or join trade unions. In this respect, the Committee requested the Government to take the necessary steps to ensure that full effect is given to Article 2 of the Convention so that all workers, without distinction whatsoever, enjoy the right to establish and join unions. The Committee notes the Government’s indication concerning the regulations applicable to temporary service enterprises and cooperatives. In particular, the Committee notes the Government’s indication of the approval by the Congress of the Republic, on 22 July 2008, of Act No. 1233 respecting associated work cooperatives, following lengthy consultations with the representative organizations of associated work cooperatives, workers’ federations, branch organizations representing employers and academic circles. The Act regulates the activities of associated work cooperatives, third-party contractors and the competence of the Supervisory Authority for Economic Solidarity and the Ministry of Social Protection to impose penalties. According to the Government, the most important features of the Act include: (1) that it establishes the minimum wage as the basis for ordinary compensation and the requirement to pay contributions to the social security, employment injury and pension branches and compensation funds; (2) employment placement is prohibited and, where it occurs, employers’ responsibilities apply to cooperatives and third-party contractors; and (3) it establishes a self-governing code for representative organizations of cooperatives and a commitment by representative organizations of cooperatives in relation to the principles of the ILO and those of the International Co-operative Alliance. The Committee observes that a reading of the Act shows that: (1) section 3 establishes ordinary monthly compensation in accordance with the work performed, productivity and the quantity of work undertaken by the “associated worker”; (2) section 9 refers to workers “who provide their services in associated work cooperatives or pre-cooperatives”; (3) under the terms of section 12, “the social object of cooperatives and pre-cooperatives consists of generating and maintaining work for associates in a self-managed manner, with autonomy, self-determination and self-direction”; (4) section 12, second paragraph, provides that “associated work cooperatives whose activity is the provision of services to the health, transport, vigilance, private security and education sectors shall be specialized in the respective branch of activity”; and (5) the organizations of cooperatives to which the Act refers are not trade union bodies. Observing that the Act itself refers to the “workers” of cooperatives, the Committee recalls that under the terms of Article 2 the Convention, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing. The Committee also recalls that the criterion for determining the persons covered by this right is not based on the existence of a labour relationship with an employer and that the concept of worker includes not only dependent workers, but also workers who are self-employed or autonomous. In this respect, the Committee considers that associated workers in cooperatives should be able to establish and join the trade union organizations of their own choosing. The Committee requests the Government to take the necessary measures to guarantee explicitly that all workers, without distinction, including workers in cooperatives and those covered by other forms of contracts, irrespective of the existence of a labour relationship, enjoy the guarantees afforded by the Convention.

Rights to establish organizations without previous authorization. In its previous comments, the Committee referred to the arbitrary refusal by the authorities to register new trade union organizations, new trade union rules or the executive committee of a trade union at the discretion of the authorities for reasons that go beyond the explicit provisions of the legislation. The Committee requested the Government to take steps to amend the provision of Decree No. 1651 of 2007 which established as one of the grounds for denying registration “that the trade union organization has been established, not to guarantee the fundamental right of association, but to secure labour stability” and to register new organizations or executive committees, as well as amendments to rules, without undue delay. The Committee notes the Government’s indication that, by virtue of the Substantive Labour Code, the grounds for refusing to register a trade union are limited and that the decision by the Ministry of Social Protection not to register a trade union when it does not comply with the respective legal requirements is not a discretional power. Furthermore, such a decision has to be based on a reasoned administrative decision that is subject to administrative and judicial appeal. The Committee nevertheless notes that Resolution No. 1651 has been repealed by Resolution No. 626 of February 2008, although the latter resolution includes in section 2 among the grounds upon which the competent official may refuse an entry in the trade union register, “that the trade union organization has been established for purposes that are different from those deriving from the fundamental right of association”. In this respect, the Committee recalls once again that Article 2 of the Convention guarantees the right of workers and employers to establish organizations without previous authorization from the public authorities and that national regulations governing the constitution of organizations are not in themselves incompatible with the provisions of the Convention, provided that they are not equivalent to a requirement for previous authorization and do not constitute such an obstacle that they amount in practice to a prohibition (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 68 and 69). The Committee further considers that the administrative authority should not be able to deny registration of an organization merely because it considers that it might devote itself to activities that although legal may go beyond normal trade union activities. In these circumstances, the Committee once again requests the Government to take the necessary measures to abrogate the provision of Resolution No. 626 of February 2008 which establishes as one of the grounds for refusing entry into the register for a trade union organization “that the trade union organization has been established for purposes other than those deriving from the fundamental right of association” and to register new organizations, executive committees and amendments to rules without undue delay.

Article 3. Right of workers’ organizations to organize their activities and to formulate their programmes. The Committee also referred previously to the prohibition of strikes, not only in essential services in the strict sense of the term, but also in a very broad range of services that are not necessarily essential (section 430(b), (d), (f), (g) and (h); section 450(1)(a) of the Labour Code, Tax Act No. 633/00 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 to dismiss workers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even when the unlawful nature of the strike is a result of requirements that are contrary to the principles of freedom of association. The Committee previously requested the Government, in the context of a Bill that was being examined by Congress and which envisaged certain amendments to the Labour Code, to amend the provisions referred to above and invited the Government to have recourse to the Office’s technical assistance. In this respect, the Committee notes the Government’s indication that: (1) when assessing the divergent interests, for the purpose of defining essential public services, the legislator has to start from a serious objective and reasonable basis so that the respective regulation maintains proportionality between compliance with the fundamental rights of users and the right to strike of workers; (2) the Constitution recognizes the right to strike, although it is not absolute; and (3) under the terms of Act No. 1210 of 14 July 2008, the Standing Dialogue Commission on Wage and Labour Policies, which is tripartite, shall submit a report within six months on the draft texts that it has submitted in relation to articles 55 (collective bargaining) and 56 (strike action and essential services) of the Constitution. The Committee requests the Government to provide information on any progress made in amending the legislation with regard to the very broad range of services in which, as they are deemed essential, the right to strike is prohibited, and section 450, second paragraph, under which workers who have participated in a strike in such services can be dismissed.

Declaring a strike illegal. The Committee previously noted the formulation of a Bill under which the competence to declare strikes illegal was transferred from the Ministry of Social Protection to the judicial authorities. The Committee notes with satisfaction that Act No. 1210 has amended section 451 of the Substantive Labour Code to read as follows: “the legality or illegality of a collective work suspension or stoppage shall be declared by the judicial authorities in a priority procedure”.

Compulsory arbitration. The Committee referred previously to the authority of the Minister of Labour to refer a dispute to arbitration when a strike exceeds a certain period – 60 days – (section 448(4) of the Labour Code). The Committee noted a Bill to amend this section, providing that where it is not possible to achieve a definitive solution, the parties or one of them shall request the Ministry of Social Protection to convene an arbitration board. The Committee notes that Act No. 1210 amends section 448(4) of the Labour Code and provides that: (1) the employer and the workers may, within the following three days, convene any settlement, conciliation or arbitration machinery; (2) if they do not reach agreement, automatically or at the request of the parties, the Commission for Dialogue on Wage and Labour Policies shall intervene and use its good offices for a maximum of five days; (3) once this period has elapsed without it being possible to achieve a definitive solution, both parties shall request the Ministry of Social Protection to convene an Arbitration Board; and (4) the workers shall be under the obligation to return to work within three days. In this respect, the Committee considers that, except in essential services in the strict sense of the term or in the case of public servants exercising authority in the name of the State, the convening of the Arbitration Board should only be possible where both parties so decide voluntarily in common agreement. The Committee requests the Government to take the necessary measures to amend section 448(4) as indicated above.

Article 6. Restrictions imposed on the actions of federations and confederations. The Committee referred previously to the prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code). The Committee recalled that higher level organizations should be able to resort to strikes in the event of disagreement with the Government’s economic and social policy and requested the Government to amend the above provision. The Committee notes the Government’s indication that federations and confederations cannot be assimilated to first-level organizations since those who hold a legal interest in collective bargaining are the workers who are members of enterprise, industry or branch trade unions and the employers to whom lists of claims have been submitted. The Government adds that if federations and confederations do not have a legal interest in collective bargaining, then they clearly have much less interest in strikes. In this regard, the Committee recalls that the guarantees provided to first-level organizations by Article 6 of the Convention also apply to higher level organizations. Indeed, in order to defend the interests of their members more effectively, workers’ and employers’ organizations need to have the right to establish federations and confederations of their own choosing, which should themselves enjoy the various rights accorded to first-level organizations, in particular as regards their freedom of operation, activities and programmes (see General Survey, op. cit., paragraphs 195 and 198). The Committee requests the Government to take the necessary measures to amend section 417(i) so as not to prohibit the right to strike of federations and confederations.

Observing that it has been making comments for many years, the Committee expresses the firm hope that the Government will take the necessary measures without delay to amend the legislative provisions commented upon and bring them into conformity with the Convention. The Committee requests the Government to provide information on any measures adopted in this respect.

The Committee is addressing a request directly to the Government on another point.