Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Colombia (Ratification: 1976)

Other comments on C087

Observation

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Comments from workers’ and employers’ organizations. The Committee notes the comments of the World Federation of Trade Unions (WFTU), dated 11 and 27 June 2012, the International Trade Union Confederation (ITUC), the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), provided in communications dated 31 August 2012, and of the General Confederation of Labour (CGT), dated 5 September 2012. The Committee notes that these comments refer in general to matters already under examination by the Committee, and in particular to acts of violence against trade union leaders and members, including murders and other acts of violence, as well as the impunity relating to many acts of violence. The Committee also observes that some of the comments refer to allegations of anti-union discrimination and matters relating to difficulties in exercising trade union rights by workers in the informal economy or who are covered by subcontracting arrangements. The Committee invites the Government and the social partners to include these subjects in their discussions in the context of the National Dialogue Commission on Wage Policies, or in corresponding dialogue bodies.

The Committee also notes the comments of the National Employers Association of Colombia (ANDI), supported by the International Organisation of Employers (IOE), dated 5 September 2012. The Committee notes the comments made by the IOE on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee notes the Government’s various communications related to these comments.

Cooperation project on international labour standards

The Committee notes with interest the launching, in August 2012, of the project to promote compliance with international labour standards in Colombia, financed by the Government of the United States. The Committee observes that the objectives of the project are: (1) the strengthening of the institutional capacity of the Ministry of Labour, and particularly labour inspection services; (2) the strengthening of existing social dialogue bodies (the Standing Dialogue Commission on Wage and Labour Policies and the Special Committee for the Handling of Conflicts referred to the ILO–CETCOIT) and of the social partners who participate in them, particularly at the departmental and local levels; and (3) the strengthening of the institutional capacity of the Government of Colombia to improve measures for the protection of trade union leaders, members, activists and organizers and to combat the impunity of those engaging in acts of violence against them. The Committee also notes that the project envisages providing the necessary technical assistance as a priority to the units of the new Ministry of Labour responsible for combating the abuse of employment mediation and other forms of contracting which are in violation of workers’ rights (such as associated work cooperatives, simplified limited liability companies and temporary service enterprises) and to guarantee that collective accords are not used to undermine the position of trade unions or to prevent the conclusion of collective agreements.

Technical assistance missions. The Committee notes that the Government requested assistance from the Office to strengthen the work that has been undertaken by the CETCOIT. In this context, the Committee welcomes the participation by the Office in the meetings of the CETCOIT in May and August 2012, in the context of which the parties reached agreements and withdrew certain complaints that had been submitted to the Committee on Freedom of Association. The Committee of Experts notes the comment by the CUT in relation to the CETCOIT that there are no regional structures and that it does not have means of protecting trade union organizations that do not have their headquarters in Bogotá, that the results achieved in recent years have been very disappointing and that in certain cases the agreements concluded are not given effect. In this respect, the Committee takes note of the Government’s indication that: (1) tripartite agreement was reached on the appointment of a facilitator in the CETCOIT and that since the facilitator’s appointment 15 cases have been dealt with, in eight of which agreement was reached; (2) the members of the CETCOIT have discussed the ILO’s recommendation to establish departmental structures, for which reason it has been agreed to establish pilot projects in certain areas of the country; and (3) the regulations of the CETCOIT were approved, with certain adjustments for greater clarity concerning the actors and members. The Committee also notes the Government’s indication that in Case No. 2356 (examined by the CETCOIT), in which the Committee on Freedom of Association recommended the reinstatement of 51 workers on the grounds of the causal relationship between their trade union activities and their dismissal, the Constitutional Court accepted the recommendations of the Committee on Freedom of Association, ordered the reinstatement of the workers and that the Court’s ruling has already been given effect. The Committee notes all of these initiatives and information, taking into account that the project for the promotion of compliance with international labour standards in Colombia, referred to above, envisages the strengthening of the machinery intended to resolve labour disputes, and particularly the CETCOIT, as recommended by the ILO high-level tripartite mission which visited Colombia in 2011, and it hopes that it will be able to continue noting progress in the work of the CETCOIT.

The Committee further notes that, at the invitation of the Government, the Director of the International Labour Standards Department of the ILO visited Colombia to seek information on the effect given to the conclusions of the high-level tripartite mission which visited Colombia in 2011, and the Tripartite Agreement on Freedom of Association and Democracy concluded in 2006. The Committee notes in particular that the Director of the Department was provided with information on: (1) the structure and objectives of the new Ministry of Labour, which entered into operation in December 2011; (2) the legislative and practical measures adopted to combat the violence affecting the trade union movement and impunity (the creation of the Protection Unit; the adoption of Decree No. 4912 of 26 December 2011 reforming the nature and operation of the Committee to Assess Risks and Recommend Measures; the protection of 1,273 members of trade union organizations; the budget of US$107 million for protection; and the increase in criminal investigation officers, specialized prosecutors and courts); and (3) the measures adopted to strengthen labour inspection (launching of a training, prevention and monitoring programme for enterprises, cooperatives, third-party employers and officials on collective rights on the right of association; the increase in the number of inspectors, with 100 new posts in 2011 and the plan for there to be 904 inspectors by 2014; the inspection services have imposed penalties in the ports, palm and transport sectors for labour mediation and violations of labour standards). The Committee notes with interest that, during the visit by the Director of the ILO Standards Department, the Public Prosecutor of the Nation and the ILO signed a Memorandum of Understating envisaging the establishment of relations of cooperation and information. The Committee further notes that, according to the information provided to the Director of the ILO Standards Department, the social partners have a different view on the progress that is reported to have occurred; moreover, during her visit, various workers’ organizations referred to violations of trade union rights and collective bargaining and, at a meeting of the Standing Dialogue Commission, it was agreed that the complaints concerned would be subject to tripartite review with the aim of them being examined at the national level.

The Committee requests the Government to continue to provide information on developments with respect to the strengthening of the labour inspection in law and in practice and the examination of conflicts by the CETCOIT.

Trade union rights and civil and political liberties

The Committee recalls that for many years it has been examining allegations of violence against trade unionists and the situation of impunity, which have been submitted to the Committee of Freedom of Association in Cases Nos 1787 and 2761. The Committee notes with concern that the ITUC, CUT, CTC and CGT refer to acts of violence against trade unionists. They allege that, according to the records of the National Trade Union School, 30 trade unionists were murdered in 2011, and 11 in 2012, and that the number of threats increased from 404 in 2010 to 538 in 2011. The CUT indicates that the exercise of the right to freedom of association continues to involve a high level of risk, that there is no public protection policy focused on trade union liberties guaranteeing the right and integrity of the persons concerned and the free functioning of trade union organizations, and that in relation to impunity it is possible to see a first change in the views of certain courts and prosecutors (in relation to the need to adopt a systematic method of investigation in relation to anti-union violence, and to go deeper into the trade union aspects in investigations so that the motives are clearly revealed) and that up to now it has also been possible to discern a commitment in the instructions of the sub-unit of the Office of the Public Prosecutor, without it yet having an impact on the work of prosecutors and the courts.

The Committee further notes the indications by the ANDI that: (1) the Government adopted Decision No. 716 in April 2011 extending trade union protection not only to trade union leaders and members, but also to trade union activists and to workers who were not able to establish a union because they had received threats; (2) Directive No. 013 of April 2011 appointed 153 officers of the criminal police to combat impunity in crimes affecting the trade union membership, and Decree No. 2248 of June 2011 allocated 60 new specialized prosecutors, reaching a total of 162 prosecutors at the national level; (3) in 2012, a budget of US$113.33 million were allocated to the trade union leader protection programme; and (4) the Office of the Public Prosecutor has continued the work of investigation in the context of Cases Nos 1787 and 2761, submitted to the Committee on Freedom of Association, and by April 2012 the numbers were 425 convictions and 530 persons convicted for crimes against trade unionists.

The Committee notes the Government’s indication that: (1) it is firmly convinced that as those responsible for crimes committed against trade unionists are investigated and punished, not only are the rights to truth and justice being guaranteed, but a contribution is being made to the prevention of further violations, and that the Government has the absolute commitment and will to combat impunity; (2) in 2010, the number of murders committed in Colombia was 14,459, of which 37 were trade unionists; in 2011, the number of murders was 14,746, of which 30 were trade unionists, and in 2012, the number of trade unionists murdered was 12; (3) in 2011, the number of trade unionists benefiting from protection measures was 1,186, with a budget of US$70 million, while in 2012 the number of trade unionists benefiting from protection was 1,273, with a budget of US$107 million; (4) in compliance with the commitments made, the Protection Unit was created by Decree No. 4065 of 2011 and Decree No. 4912 of 26 December 2011 was issued organizing the Prevention and Protection Programme for the Right to Life, Freedom, Integrity and the Security of Individuals, Groups and Communities under the responsibility of the Ministry of the Interior and the National Protection Unit; (5) the Decree referred to above reformed the nature and operation of the Committee for the Assessment of Risks and the Recommendation of Measures (CERREM) and the Technical Unit for the Compilation and Analysis of Information was created; (6) the representatives of the CUT, CTC and CGT trade union confederations participate in the CERREM with standing invitations; (7) with a view to combating impunity, the Office of the Prosecutor of the Nation has adopted a new criminal investigation policy for violations of human rights and has created the interdisciplinary National Analysis and Situation Unit which will allow progress to be made, among other cases, in those related to macro-criminal structures which violate the human rights of trade unionists, following standards adopted by international courts; (8) the new strategy of the Office of the Public Prosecutor emphasizes the need to give priority to investigations (according to the information provided to the Director of the ILO Standards Department, priority has been given to all cases of the murder of trade unionists included in Case No. 2761) of violations of human rights as an effective response in combating impunity; this policy was discussed with the social partners; (9) the Public Prosecutor has indicated that joint and tripartite machinery will be established with the Ministry of Labour, the trade union confederations and the ANDI, through monthly meetings which will address concerns and comments relating to the management of investigations in cases of anti-union violence, and the first meeting was held on 31 August 2012; (10) the measures adopted will increase the outstanding results achieved up to now, which led in Case No. 1787 to 439 sentences being imposed in relation to the murders, with a total of 531 persons being convicted, while in Case No. 2761 there have been 13 sentences imposed in relation to the murders, and 11 cases are currently before the courts; (11) in relation to impunity, the Office of the Public Prosecutor conducted a study on the sentences handed down for acts of violence against unionized workers and found that in only 17.7 per cent of the cases was there a relation between trade union status or the exercise of trade union activities and the murder, and that the most frequent motive related to the collaboration or membership of the victim in a subversive group; (12) in view of the commitment of the Office of the Public Prosecutor to continue strengthening investigations and prosecutions of all cases of violence against members of trade union organizations and the importance for the management of the Office of the Public Prosecutor of adopting international standards of investigation so as to combat impunity more effectively, a Memorandum of Understanding was concluded between the Office of the Public Prosecutor of the Nation and the ILO (referred to above); and (13) taking into account the absolute commitment of the State to defend workers’ rights, the Office of the Public Prosecutor of the Nation has undertaken an institutional campaign in the media defending the right of association, and has participated in social forums and agreements.

The Committee notes with deep concern, with reference to the violence affecting the trade union movement, the murder of 12 trade unionists in 2012. The Committee appreciates the involvement of all the social actors and the authorities in combating violence in general, and particularly violence affecting the trade union movement. In this respect, the Committee welcomes the initiative of the Office of the Public Prosecutor to meet the tripartite actors frequently to address their concerns and comments concerning the management of investigations in cases of anti-union violence (the Committee recalls that the trade union movement has been calling for this initiative for some time). The Committee hopes that the new measures adopted by the authorities will make it possible to provide protection to trade union leaders and members who are under threat, eradicate violence against trade union leaders and members and convict those guilty of such acts. The Committee requests the Government to continue to provide information on the effects of these measures in practice.

Pending legislative issues

Articles 3 and 6 of the Convention. Right of workers’ organizations to organize their activities and to formulate their programmes. The Committee recalls that for a number of year it has been referring to the need to take measures to amend the legislation in relation 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). The Committee notes the indication by the ANDI that: (1) section 430(g) of the Substantive Labour Code, which provided that the mining, preparation and distribution of salt was an essential service found to be void by the Constitutional Court and therefore no longer forms part of Colombian legislation; and (2) in general, in relation to essential services, it is important to bear in mind that this is one of the points set out in the plan of action with the Government of the United States and the Tripartite Agreement on Freedom of Association and Democracy of 2011, and that the technical support of the Office is envisaged for their discussion and determination by the social partners in the National Dialogue Commission on Labour and Wage Policies. In this respect, the Committee notes that the Constitutional Court informed the Director of the ILO Standards Department that it had urged the legislative authorities to specify the services which have to be considered essential and that Congress still has to determine this matter;
-the possibility to dismiss workers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even where the unlawful nature of the strike is a result of requirements that are contrary to the principles of freedom of association. The Committee notes the indication by the ANDI that the Constitutional Court ruled that greater guarantees are to be provided to workers who participate in an unlawful strike and that the Court found that merely declaring a work stoppage illegal is not sufficient to immediately dismiss the worker, as the employer has to demonstrate the latter’s participation in the collective and illegal work stoppage through a procedure in which the employee can intervene with a view to safeguarding his or her rights to due process and defence; and
-the prohibition of the calling of strikes by federations and confederations (section 417(i) of the Labour Code).

In this respect, the Committee notes the reference by the Government to the launching of the technical cooperation project for compliance with international labour standards, in the context of which dialogue bodies will be reinforced, and particularly the National Dialogue Commission, in which matters related to essential public services will be examined. The Committee trusts that the Government will soon undertake a tripartite analysis of the above legislative provisions and that it will take into account in this respect the rulings of the Supreme Court and Constitutional Court , and reminds it that it may have recourse to the technical assistance of the Office in this process. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.