Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Unemployment Convention, 1919 (No. 2) - Colombia (Ratification: 1933)

Other comments on C002

Observation

Direct Request

2022
2010

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The Committee recalls that the ILO Governing Body, at its 337th Session in October–November 2019, at the recommendation of the Tripartite Working Group of the Standards Review Mechanism, classified Convention No. 2 as an outdated Convention, and agreed to decide on an appropriate date for the Conference to consider its abrogation or withdrawal in 2026. The Governing Body requested the Office to adopt tailored follow-up measures to actively encourage States parties to this outdated Convention to ratify the related up-to-date Conventions which cover the subject matter of each of its three substantive provisions with a view to preventing a gap in legal protection. The Committee encourages the Government to give effect to the decision of the Governing Body adopted at its 337th Session (October–November 2019) to approve the recommendations of the Tripartite Working Group of the Standards Review Mechanism and to envisage the ratification of the Employment Policy Convention, 1964 (No. 122), and the Private Employment Agencies Convention, 1997 (No. 181).

The Committee notes the observations of the National Employers Association of Colombia (ANDI), received on 31 August 2021. The Committee also notes the observations of the Confederation of Workers of Colombia (CTC), the General Confederation of Workers (CGT) and the Single Confederation of Workers of Colombia (CUT), received on 1 September 2021. The Committee requests the Government to provide its comments in this respect.

Article 1 of the Convention. Measures to combat unemployment. The Committee notes the information provided by the Government on the implementation of various measures to decrease the level of unemployment through a full range of interventions, including direct employment creation, reinforcing the employability of groups that are particularly vulnerable to unemployment and the improvement of the Public Employment Service (PES). In this respect, the Committee refers to its most recent comments on the Employment Service Convention, 1948 (No. 88), in which it noted the implementation of various measures to strengthen the services provided by the PES. The Government indicates that, between February 2020 and March 2021, a total of 100 336 young persons and women were placed in employment through the services of the PES. The Government also refers to Act No. 2040 of 2020, which establishes a series of benefits for enterprises which take on older workers without pensions. The Government adds that it is planned to adopt a public policy for the cooperative sector in collaboration with representatives of the solidarity economy.In this context, the Committee notes the creation in 2020 of the Intersectoral Commission for the Solidarity Economy Sector as the body responsible for coordinating and guiding policy formulation on the solidarity and rural economy. The Committee also notes the information provided by the Government on labour market trends. According to the statistical data of the National Administrative Department for Statistics (DANE), the unemployment rate in April 2020 was 19.8 per cent, although it fell to 15.1 per cent in April 2021. Over the same period, the overall labour market participation rate increased from 51.8 to 59.9 per cent and the employment rate rose from 41.6 to 50.8 per cent. However, the workers’ federations indicate that, although the unemployment rate has fallen, this could be a result not only of the increase in the number of employed persons in the formal sector, but also the rise in the number of workers in the informal sector. They also emphasize, based on DANE statistical data, that the unemployment rate of women (25.5 per cent in 2020) is much higher than that of men (17.9 per cent), and consider that immediate public action is required in this respect. They further emphasize the need to adopt measures to combat the high levels of unemployment in rural areas.

The Committee also notes the many decrees adopted by the Government in the context of the economic and social emergency declared on 17 March 2020 with a view to addressing the negative impact of the COVID-19 pandemic on the labour market. Among other measures, the Government refers to the Support Programme for Formal Employment (PAEF) and the Assistance Programme for Workers under Contract Suspension, which provided cash transfers to enterprises and workers with a view to preserving formal employment. The Committee notes that the workers’ federations indicate that legal problems have arisen with these measures and abusive practices by employers, such as the reduction of working hours and workers’ wages or dismissals; the imposition of collective leave or its excessive anticipation; as well as the imposition of the suspension of contracts without wages or notice. They add that many of these measures allow the introduction of worse conditions in employment contracts or their terms, with the agreement of the parties. On the other hand, the Government reports the creation and operation until August 2021 of the “Employment Mission”, with the objective of developing viable strategies and policies through social dialogue to address the deterioration in the labour market, which was accentuated by the pandemic, changes in the structure of employment, the emergence of new forms of contracts and the lack of a general balance in public interventions in the field of labour. The “Employment Mission” benefited from the support of various international organizations, including the ILO, and the participation, among other actors, of employers’ organizations, universities and various national institutions. However, the Committee notes the indication by the workers’ federations that they refused to participate in the Mission due to their disapproval of the regulations respecting social protection floors adopted by the Government without the participation of the Standing Commission for Dialogue on Wage and Labour Policies (CPCPSL), as required by the legislation. The Committee requests the Government to continue providing detailed and updated information on the measures adopted to combat unemployment, and particularly those intended for groups suffering from greater vulnerability (such as women, young persons, older persons, persons with disabilities and migrant workers) and underprivileged economic areas. The Committee also requeststhe Government to continue providing detailed and updated information, disaggregated by age, sex and area, on the impact of these measures.

Measures to combat youth unemployment. The Committee notes the information provided by the Government on the measures adopted to promote youth employment, including the adoption of Decree No. 392 of 2021 and Decree No. 688 of 2021, which grant fiscal deductions and benefits amounting to the equivalent of 25 per cent of the statutory minimum wage in force (SMLV), respectively, to employers which recruit young persons between the ages of 18 and 28 years without previous work experience. Decree No. 2365 of 2019 was also adopted which calls for 10 per cent of new jobs in the permanent or temporary workforce not to require previous work experience for young persons between the ages of 18 and 28 years with a view to generating public employment opportunities for young persons. However, the Committee notes the indication by the workers’ federations that these measures are not effective as the general unemployment rate was 15.8 per cent in September 2020, compared with 25.9 per cent for young persons. They also complain that the measures only promote temporary employment opportunities or promote entrepreneurship with a view to transferring responsibility for job creation to workers. Finally, they emphasize that the heterogeneous nature of youth requires active employment policies focused on the characteristics of each subgroup, including youth in the rural sector, overqualified young persons and those not in employment or training (NEETs). The Committee requests the Government to continue providing detailed and updated information, including statistics disaggregated by sex and age, on the specific measures adopted to combat youth unemployment, and their impact.

Measures to combat informality. The Committee observes that, according to the Major Integrated Household Survey (GEIH) of the DANE, in the December 2021 – February 2022 quarter, the proportion of active men and women in the informal sector in the 13 cities and metropolitan areas fell to 43.7 and 42.7 per cent, respectively, in comparison with the same period the previous year (48 per cent for men and 46.2 per cent for women). The economic sectors with the highest informality rate are agriculture, fishing, stock-raising, hunting and forestry (86.1 per cent in 2019), commerce, hotels and restaurants (72.4 per cent) and construction (64.4 per cent). The workers’ federations indicate, on the basis of the DANE statistical data, that informality in the country has remained at between 48.5 and 49.7 per cent of the working population since 2015 and note that the recent decrease in the informality rate is due to the reduction in the total working population in the context of the pandemic. They emphasize that, between July 2018 and June 2019, approximately 93.3 per cent of migrant workers were without formal contracts and 94.5 per cent did not benefit from social security coverage. The Committee notes the measures adopted by the Government to combat informality, such as the implementation of the National Labour Formalization Network (RNFL) (Decree No. 567/2014), with a view to promoting formalization in the most informal sectors and population groups. The RNFL coordinates action by institutions related to labour formalization through specialized action for the promotion, guidance and support of informal workers for their registration with the social security system. The Government also refers to the implementation of the Formal Employment Policy, which is based on four pillars: the provision of training in relevant and high-quality skills for employment; the extension and activation of the PES for labour inclusion; the provision of incentives for entrepreneurship and the strengthening of enterprises; and the modernization of labour and social security regulation with a view to making it more relevant and inclusive. The Government refers to the intervention strategy for labour formalization and reports the extension of the minimum social protection floor (for old age and health coverage), with priority being given to the most informal sectors. Finally, the Government reports the preparation of draft legislation on digital platforms establishing the conditions for the provision of services through such platforms, social protection mechanisms for persons providing personal monitoring of social security contributions and the inspection, supervision and monitoring of the duties and obligations set out in this legislation. In this regard, the workers’ federations indicate that the draft legislation submitted in 2020 does not regulate the legal void that exists in relation to the imposition of limits on digital platforms and the protection of workers who provide services through such platforms. The Committee requests the Government to continue providing detailed and updated information on the measures adopted to reduce the informality rate, particularly in relation to sectors and groups of workers with the highest informality rates. It also requests the Government to provide detailed and updated information on the impact of those measures. The Committee further requests the Government to provide information on the situation with regard to the adoption of the draft legislation on digital platforms and to provide a copy once it has been adopted. In this regard, the Government may consider it useful to take into account the guidance contained in the Employment Relationship Recommendation, 2006 (No. 198).

Article 2. Labour market intermediation. The Government indicates that, in accordance with the national legislation, labour intermediation is prohibited by any person or entity that is not in compliance with the respective requirements and is not duly accredited as a temporary work enterprise with authorization issued by the Ministry of Labour. The Committee also notes the Government’s indication that, as a result of the implementation of the regulations and the action taken by the Ministry of Labour, there has been a significant reduction in the use of work cooperatives and trade union contracts and simplified limited companies (SAS) have been penalized for engaging in illegal labour intermediation. The Government reports that the creation of new associated work cooperatives fell from 2000 in 2010 to 270 in 2016. Measures have also been adopted to improve the collection of fines in cases of unlawful labour intermediation and the follow-up of labour formalization agreements, which are strictly monitored through quarterly public reports. In this regard, the ANDI indicates in its observations that, between 2014 and 2019, a total of 616 penalties were imposed for unlawful labour intermediation, amounting to 260,387,000 Colombian pesos (COP). The Committee also notes the detailed information provided by the Government on the measures adopted to improve inspection procedures for labour intermediation. In this regard, the Government refers to the development of labour formalization agreements as a tool for normalizing the employment relations of persons who may be in an anomalous situation. Training has also been provided to labour inspectors so that they can investigate labour intermediation appropriately. The Government reports the adoption of Decision No. 2021 of 2018 establishing guidance for labour inspection in relation to labour intermediation processes with a view to harmonizing the legal criteria and ensuring the rights of workers. Finally, the Government indicates that the Department of Inspection, Supervision and Control of the Ministry of Labour publishes a quarterly bulletin containing information on the action and outcome of investigations carried out into the undue or unlawful use of labour intermediation. The Committee further notes the indication by the ANDI that the national legislation offers protection to workers who have been victims of unlawful labour intermediation. It indicates in this regard that, in cases of unlawful labour intermediation, workers can go through the ordinary courts to declare the existence of an employment contract through a real contract declaration. The Committee requests the Government to continue providing detailed and updated information on the measures adopted to combat unlawful labour intermediation, and on their impact, including statistical data on the number of inspections carried out, the violations identified and the penalties imposed on those responsible.

Article 3. Unemployment insurance. The Government reiterates in its report that, under Act No. 1636 of 2013, a mechanism has been established to protect the unemployed with a view to the coordination and implementation of an integrated system of active and passive policy measures to mitigate the effects of unemployment and facilitate the labour market integration of the unemployed. The beneficiaries of the mechanism for the protection of the unemployed are dependent and self-employed workers in the public and private sectors who have paid contributions to the Family Compensation Fund for at least 12 months over the past five years. The Committee notes the statistical data provided by the Government on the number of persons registered with the unemployment protection mechanism between 2014 and 2020. The Committee also notes the various decrees adopted by the Government for the provision of cash transfers in response to the loss of jobs and purchasing power caused by the measures adopted to contain the propagation of the COVID-19 virus. The Government indicates that, between March 2020 and July 2021, there were 467 387 beneficiaries of the various subsidies provided in the context of the health emergency. However, the workers’ federations indicate that only formal workers were able to have access to those benefits. The Committee requests the Government to continue providing statistical data, disaggregated by age and sex, on the number of claimants and beneficiaries of the unemployment protection mechanism, and the benefits provided.