Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

Other comments on C087

Observation

Direct Request

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Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee recalls that it previously noted the observations of the Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC), and the General Confederation of Labour (CGT) concerning the obstacles, both legal and practical, to trade union membership faced by workers without an employment contract, with special emphasis on the situation of apprentices, workers with service provision contracts, workers in associated work cooperatives, the unemployed and retirees. Based on the Government’s indication that the various categories of workers referred to above can exercise freedom of association through their membership of federations, confederations or branch unions, although membership of enterprise unions does require the existence of a contract of employment between the worker and the enterprise, the Committee requested the Government in its last comment to: (i) clarify the position in law concerning the possibility of unions accepting as members retirees and the unemployed, if they so wish, especially when they have been engaged in the activity represented by the union; and (ii) provide detailed information on the possibilities that are available in practice for apprentices, workers engaged under service provision contracts and workers engaged by private employment agencies, in the event that they are unable to be members of enterprise unions, to promote and defend their occupational interests effectively.

The Committee notes the Government’s reiterated indication that: (i) under the terms of the Constitution and the national legislation, all workers, without discrimination whatsoever, have the right to organize and establish permanent unions for the defence of their common interests; and (ii) workers engaged on a contractual basis, the unemployed, workers providing services or who are covered by other contractual relationships have the right to decide whether or not to join an industry or branch union to defend their occupational and branch interests. The Committee also notes the Government’s indication that a ruling of the Council of State of 8 August 2019 considered that workers on mission, those providing a temporary service to a user enterprise without being covered by an employment contract with the enterprise, can join the “industry union” of the user enterprises. The Committee notes with interest this ruling of the Council of State which recognizes the possibility for workers contracted by private employment agencies to exercise their trade union rights in user enterprises in which they provide services through the industry unions present in the enterprise. The Committee requests the Government to provide further information on the possibility for enterprise unions to be able, if they so wish, to accept the membership of apprentices engaged in working in the corresponding productive structure, as well as retirees and the unemployed, where they have been engaged in the activity of the enterprise.

Trade union census. In its previous comment, while noting the indications by the CUT, CTC and CTG that there are certain discrepancies in the findings of the trade union census carried out in 2017 (particularly in relation to the alleged inclusion of false trade unions engaged in employment mediation), the Committee noted with interest the participatory process for the conduct of the census. The Committee notes the additional data provided by the Government concerning the participatory methodology adopted and the findings of the census. It observes in particular that, according to the data provided by the Government, there are 1,368,626 members of first level unions, of whom 1,342,051 are in the seven confederations registered in the country. The Committee requests the Government to continue providing information on developments in the findings of the trade union census.

Article 3. Rights of trade unions to organize their activities. Facilities. The Committee recalls that it previously invited the Government to provide its comments on the observations of the CGT, CUT and CTC alleging the absence of legal regulation of the trade union guarantees and facilities that should be enjoyed by trade unions in the enterprise (free time, trade union leave, right of access to workplaces, the right to communicate with the workers and to disseminate information) and the difficulties experienced in obtaining recognition for these guarantees and facilities in collective agreements. In its previous comment, the Committee noted the Government’s indication that the recognition of trade union facilities has a general constitutional basis (Article 39) and recognition in law of trade union leave (section 57(6) of the Substantive Labour Code, which provides that the employer shall grant the necessary leave for the performance of trade union activities required for the organization), and that the absence of rules in collective agreements does not prevent trade union leave from being granted by the employer. Based on these indications, the Committee once again requested the Government to provide information on the manner in which these guarantees and facilities are provided for in the collective agreements in force in the country and invited it to examine, in consultation with the most representative social partners in the country, the possibility of establishing further legal regulation of the conditions for the granting and the minimum level of the guarantees and facilities that are to be enjoyed by trade unions to be able to exercise their activities within the enterprise.

The Committee notes that the Government, after referring once again to the constitutional and legal provisions indicated previously, also refers to the case law of the Constitutional Court to confirm that trade union leave is a right that can be required, although it is not absolute, even where it is not regulated by a collective agreement. The Government indicates that, according to the Constitutional Court: (i) there is no basis to the assertion that the absence of legal provisions or clauses in collective agreements regulating the granting of leave means that it is allowable not to grant such leave since, if failure to grant leave affects or impedes the normal functioning of the trade union, its denial can constitute a clear limitation or violation of the exercise of the right of association; and (ii) the employer at a specific time may refrain from granting this type of leave, or restrict it, but is required to provide reasons for the decision which must be based on a serious impact on enterprise activities. The Committee also notes the Government’s indication that, under section 416A of the Substantive Labour Code, Decree No. 2813 of 2000 regulated the granting of trade union leave in the public sector. The Committee takes due note of the information provided by the Government, and particularly the existence of regulation of trade union leave in the public sector. Emphasizing that the existence of regulation in this respect can both facilitate the exercise of trade union rights in accordance with Articles 3 and 11 of the Convention and guarantee greater legal security for employers and workers’ organizations, the Committee once again encourages the Government, in consultation with the representative social partners in the country, to examine the possibility of further regulating in law the conditions for granting trade union leave and the minimum level of guarantees and facilities from which trade unions should benefit to be able to exercise their activities in the enterprise.

Right of organizations to determine their structure. The Committee recalls the allegations of the CGT, CUT and CTC concerning the restrictions placed by labour law (section 55 of Act No. 50 of 1990) on the freedom of organizations to determine their structure due to: (i) the restriction on the establishment of trade union chapters in regions or departments, as the establishment of trade union chapters is only envisaged at the municipal level; and (ii) the restriction preventing national trade unions from establishing a section or chapter in the locality where they have their national headquarters. In its previous comment, the Committee noted the indication that the Constitutional Court, with a view to preventing an excessive centralization of power in unions, had upheld this legislative provision. Taking due note of this information and emphasizing the need to combine democratic principles with trade union independence, the Committee invited the Government to engage in dialogue with the representative trade union confederations in the country on the possibility of amending the legislation respecting the internal structure of trade unions.

The Committee notes that the Government refers once again to ruling No. C043/06 of the Constitutional Court and indicates that, although freedom of association has a constitutional basis, it is not an absolute right and must be exercised within the framework of the law. Taking due note of the information provided and emphasizing once again the importance, within the framework of this Convention, of combining democratic principles with trade union independence, the Committee once again invites the Government to engage in dialogue with the representative trade union confederations in the country on the possibility of revising the legislation respecting the internal structure of trade unions.