Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

The Committee takes note of the Government’s report. It also notes the communication addressed by the Ministry of Social Welfare to the Director-General of the ILO which was read out in the Conference Committee on the Application of Standards in 2007. In it, the Ministry reaffirms its commitment to the Tripartite Agreement on Freedom of Association and Democracy, signed by the Government and representatives of the employers and workers in Geneva on 1 June 2006, and expresses its resolve to further the implementation of the Agreement. The Government also notes the Director-General’s reply, indicating that the Office will provide all possible assistance for effective implementation of the measures announced and proposing that a high-level mission, appointed by himself, should be sent by the International Labour Office to identify new needs with a view to ensuring effective application of the Tripartite Agreement and the technical cooperation programme. The Committee further notes the numerous cases concerning Colombia currently before the Committee on Freedom of Association.

The Committee notes the comments on the application of the Convention submitted on 28 August 2007 by the International Trade Union Confederation (ITUC) and those from the Single Confederation of Workers (CUT), the General Confederation of Labour (CGT), the Confederation of Workers of Colombia (CTC) and the Confederation of Pensioners of Colombia (CPC) in a communication of 28 May 2007, and those of 31 August 2007 from the CUT which refer to matters the Committee has been raising, particularly acts of violence against trade union leaders and trade unionists including killings, abductions, attempts on their lives and disappearances. They likewise refer to the serious impunity surrounding these acts; the use of associated work cooperatives so that workers are unable to form and join unions; the arbitrary refusal to register new trade union organizations or new statutes or executive boards of unions; and the prohibition on strikes and certain services other than essential services.

Situation of violence and impunity

Regarding the acts of violence against trade union members and leaders, the ITUC states that most of such acts are associated with industrial disputes. It again observes that paramilitary groups view the trade union movement as sympathetic to guerrillas and the extreme left and that this makes it very vulnerable. According to the ITUC, the efforts made by the Government to ensure the security of trade union leaders are insufficient. In 2006, 78 murders were reported, the education sector being the most affected, with a total of 49 murders. The ITUC also refers to numerous threats and attacks. The Colombian central organizations, for their part, refer to systematic anti-union violence, alleging the involvement of several state institutions that have links with paramilitary groups and drug traffickers responsible for the murders of several well-known trade union leaders. They further state that in most cases, responsibility for the killings can be attributed to paramilitary groups. According to the ITUC, although to a lesser extent, the guerrillas have also participated significantly in acts of violence against trade unionists.

The Committee notes that in responding, the Government refers to the protective measures adopted under the protection programme set up in 1997. It adds that the programme’s budget has been consistently increased, and provides a detailed list of the number of protection measures authorized, pointing out that at present, 25.25 per cent of such protection goes exclusively to the trade union movement in the form of reinforcement of their headquarters, escorts, armoured cars and bulletproof vests, among other protective measures. Furthermore, a policy for the protection and security of democracy has been devised to provide effective protection for the rights of Colombians which is being implemented in coordination with all government bodies, with the result that the number of homicides has dropped, including the killings of trade unionists. In view of the fact that education is the sector most affected by the murders, the Government states that in cooperation with the Colombian Federation of Educators (FECODE), a national working party on teachers under threat has been set up in which the Ministry of Social Welfare, the Ministry of National Education, the Ministry of the Interior and Justice, the national police and the Presidential Human Rights Programme participate. Under the latter programme, numerous teachers have been relocated. The Government states that there were 18 murders in 2007, and reiterates its resolve to reduce this figure to zero.

The Committee notes with concern that members of trade unions continue to be the target of serious acts of violence because of their union membership. The Committee notes that the Government made significant efforts to ensure protection for trade union members and leaders and for trade union headquarters. It nonetheless observes that the number of persons being protected has declined and considers that the protection effort needs to be strengthened. Consequently, it points out once again that a truly free and independent trade union movement can develop only in a climate of respect for fundamental human rights (see General Survey on freedom of association and collective bargaining, 1994, paragraph 26) and that employers’ and workers’ organizations can carry on their activities freely and meaningfully only in a climate free from violence. Accordingly, the Committee again urges the Government to take the necessary steps to ensure the right to life and security of trade union leaders and members so that they may fully exercise the rights guaranteed by the Convention. With regard to protective measures in particular, the Committee requests the Government to take the necessary steps to provide for all trade unionists who so request, measures for their protection which are adequate and which command their trust.

As to the measures against impunity, the Colombian central unions acknowledge the efforts of the Attorney-General to secure progress in the investigation of serious human rights violations against trade unionists, though they emphasize that only a minute percentage of investigations reach the trial or sentencing stage.

The Committee notes the Government’s statement that in the context of the commitment made under the Tripartite Agreement, on 15 September 2006 the Government and the Attorney-General signed Inter-administrative Agreement No. 15406 to further the investigation of violations of the human rights of trade unions, the aims of which are: (1) to devise strategies to clarify the facts; (2) to identify and punish the perpetrators and accomplices; (3) to prevent offences that abuse the human rights of trade unions by adopting the necessary institutional, national and local plans and programmes. To this end, the Attorney-General has appointed 13 public prosecutors, with a group of criminal police investigators and a technical investigation unit comprising 78 persons, plus 24 lawyers to back up the investigations. The investigations are devoted in particular to the murders reported in the context of Case No. 1787, currently before the Committee on Freedom of Association. The Government adds that the Higher Council of the Judiciary appointed three dedicated judges to hear cases referred by the Attorney-General. The Government has sent a long list of investigations (48) that ended with the conviction of the perpetrators of acts of violence against trade union leaders. The sentences were pronounced between June 2002 and the beginning of 2007.

While observing that since 2002 the number of sentences imposed continues to be quite modest, the Committee notes the efforts made by the Government, and acknowledged by the trade union organizations, to further the investigation of abuses of the human rights of trade unionists. In these circumstances, the Committee requests the Government to continue to take the measures within its reach to secure progress in investigations into acts of violence against the trade union movement. It expresses the firm hope that the measures adopted recently in connection with the appointment of new prosecutors and judges will lead to an improvement in combating the impunity situation and shed light on the acts of violence against trade union leaders and members, and enable the perpetrators to be captured.

In previous comments the Committee asked 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 in this connection that the Constitutional Court reached a decision on the challenges to the Act: it declared the Act enforceable but ruled that some of its provisions were unconstitutional and unenforceable. Observing that the Government has not sent the information requested, the Committee repeats its request.

Practical and legislative matters pending

The Committee has been commenting, in some instances for many years, on the following matters:

–           various types of contractual arrangements, such as associated work cooperatives and service, civil or commercial contacts which are a cover for actual employment relationships and are used to carry out functions and work that are within the normal activities of the establishment, and under which workers may not form or join trade unions. The Committee notes the Government’s response to the effect that: (a) Decree No. 4588 of 2006 has been issued and provides that cooperatives may not be used as a means of labour intermediation and that where they are used improperly, simulating activities of temporary service enterprises, this denies workers the guarantees of the Labour Code, and that Circular No. 0036 of 2007 determines the scope of the abovementioned Decree; (b) the Supervisory Authority for Economic Solidarity investigates and sanctions any departure from the social purpose of associated work cooperatives, while the Ministry of Social Welfare determines when there shall be labour intermediation and when there is non-compliance with comprehensive social security standards; and (c) the Special Unit for the Inspection, Monitoring and Control of Labour carried out 1,067 visits to associated work cooperatives, and 961 investigations were opened as a result of which penalties were imposed on 118 associated work cooperatives found to have been misused for the purpose of labour intermediation. The Committee points out that Article 2 of the Convention provides that workers and employers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing without previous authorization. The Committee reiterates that when workers in cooperatives or those covered by other types of civil or commercial contracts have to perform work within the normal activities of the establishment in the context of a relationship of subordination, they should be treated as employees in a real employment relationship and should therefore enjoy the right to join trade unions. Consequently, the Committee once again asks 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 organizations.

–           The arbitrary refusal 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 express provision of the legislation. The Committee notes the Government’s statement that a resolution has been issued (No. 1651 of 2007) amending sections 2, 3 and 5 of resolution No. 1875 of 2002 in order to speed up the procedure for entering trade union organizations in the register. The Committee observes that one of the grounds for denying registration set out in Decree No. 1651 of 2007 is “that the trade union organization has been established not to guarantee the fundamental right of association but to secure labour stability”. The Committee reminds the Government 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 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, op. cit., 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 go beyond normal trade union activities or that it might not be able to fulfil its functions. In these circumstances, the Committee requests the Government to take steps to amend this provision of Decree No. 1651 of 2007 and to make sure that the administrative authority does not have discretionary powers that are inconsistent with Article 2 of the Convention and that it registers new organizations or executive committees, as well as amendments to rules, without undue delay.

–           The prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code). The Committee repeats once again that higher-level organizations ought to be able to resort to strikes in the event of disagreement with the Government’s economic and social policy. The Committee requests the Government to take steps to amend section 417(i) of the Labour Code.

–           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 which are not necessarily essential (section 430(b) as it pertains to transport, (d), (f), (g) and (h); 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 to dismiss trade union leaders 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 association. The Committee notes that the Government acknowledges that section 430 is not consistent with the provisions of the Convention and states that the Ministry has seldom declared strikes to be unlawful and that such decisions are reviewed by the State Council. Moreover, the Committee notes with interest that the Government has transmitted a copy of a draft law submitted to Congress, providing that the illegality of a suspension or of a collective agreement will be decided by a labour court judge. Mindful that the Government acknowledges the need to amend some of these provisions and that it had presented a draft law to Congress providing for several amendments to the Labour Code, the Committee asks it to take the necessary steps to avail itself of the fact of the draft law’s presentation to Congress to amend all the legal provisions on which it has commented, and invites it to seek technical assistance from the Office.

–           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 takes due note of the Government’s indications of the submission to Congress of a draft law that amends this section, providing that the parties may agree to a conciliation mechanism or arbitration to resolve their dispute, as well as the fact of the intervention of the subcommittee of the committee of consultation on wage policy and labour. However, the Committee notes that the draft law provides that if a definitive solution cannot be found, both or one of the parties may petition the Ministry of Social Welfare to convene an arbitration tribunal. The Committee reiterates that compulsory arbitration to end a strike, except when at the request of both parties, is acceptable only in instances where the strike may be restricted, or even prohibited, i.e. in disputes in the public service involving public servants exercising authority in the name of the State or in 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. The Committee requests the Government to take the necessary steps to amend this principle in keeping with the principle noted above.

Observing that it has been making comments for many years, the Committee expresses the firm hope that the Government will take the necessary steps without delay to amend the legislative provisions so as to align them with the Convention. The Committee further hopes that the high-level mission undertaken in November 2007 will be useful in assisting the Government in its efforts to comply with the Convention. It requests the Government to keep it informed of any developments in this respect.

The Committee is addressing a request on other matters directly to the Government.