Observación (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Colombia (Ratificación : 1976)

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Observación

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, the joint observations of the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), received on 1 September 2019, the observations of the General Confederation of Labour (CGT), received on 5 September 2019, and the joint observations of the ITUC, the Trade Union Confederation of the Americas (TUCA-CSA), CUT and CTC, received on 1 September 2017. The Committee observes that these various observations referred to matters addressed by the Committee in the present observation and contain allegations of violations of the Convention in practice. The Committee notes the Government’s comments in this respect.. The Committee also notes the joint observations of the Colombian Association of Civil Aviators (ACDAC), the ITUC and the CTC, received on 22 March 2019, and the Government’s reply thereto. The Committee further notes the observations of the International Transport Federation (ITF) and its affiliated organizations ACDAC, the Colombian Association of Flight Attendants (ACAV) and the Union of Air Transport Workers of Colombia (SINTRATAC) received on 4 September 2019, which concern, on the one hand, matters related to Case No. 3316 before the Committee on Freedom of Association and, on the other hand, issues addressed in this comment.

Finally, the Committee notes the joint observations of the International Organisation of Employers (IOE) and of the National Employers’ Association of Colombia (ANDI), received on 30 August 2019, referring to matters addressed within the context of the present observation.

Trade union rights and civil liberties. The Committee recalls that for many years it has been examining, in the same way as the Committee on Freedom of Association, allegations of violence against trade unionists and the situation of impunity in this regard. The Committee notes with deep concern that the ITUC, CUT, CTC and CGT allege the persistence of a very high number of murders and other acts of anti-union violence in the country. In this regard, the Committee notes that the ITUC: (i) denounces 194 acts of anti-union violence in 2018, with 82 per cent of the victims being trade union leaders; and (ii) denounces the murder of 34 trade union leaders and members in 2018, with information on the circumstances on each of these crimes.

The Committee further notes the indication by the CUT and CTC that: (i) 907 acts of anti-union violence were recorded between 2016 and August 2019, including 101 murders; (ii) the number of murders in 2017 (31) and 2018 (37) has increased in relation to 2016 (20); (iii) unions representing rural workers, education and mining and energy workers are those most affected by anti-union violence; (iv) in the same way as other forms of citizens’ organizations, unions are considered by criminal groups to be an obstacle to the unlawful appropriation of public income and the exploitation of land left unoccupied by the peace process; (v) the stigmatization of trade union activities, particularly in the education sector, the support by unions for the peace process and the anti-union policy in the private sector are other factors underlying the persistence of anti-union violence; (vi) although anti-union violence has decreased in comparison with previous decades, it is increasingly focussed on trade union leaders with a view to the fragmentation of the organizations for which they are responsible; (vii) the reduction in the provision of protection measures in recent years is a source of concern, and the murdered members of the trade union movement did not benefit from such protection measures; (viii) a collective approach to the granting of protection measures would be appropriate to prevent union members depending solely on individual complaints, which are not always made; and (viii) a collective approach to the granting of protection measures would be appropriate to prevent them depending solely on individual complaints, which are not always made; and (ix) according to the data provided by the Office of the Prosecutor General, of the 88 cases of murders of members of the trade union movement known to that Office between 2015 and May 2019, there were only 14 convictions. The Committee further notes the indications by the CGT that: (i) there has been a disproportionate increase in the murder of social leaders in Colombia over the past three years; (ii) the protection measures provided for members of the trade union movement continue to be inadequate and have tended to become less effective in recent years; (iii) although the capacity of the Office of the Prosecutor General has been strengthened in the past five years to investigate crimes against trade unionists, there has been little progress, with 87 per cent of the murders and over 99 per cent of the threats to members of the trade union movement still awaiting clarification.

The Committee notes the emphasis placed by the ANDI on the important efforts made by public institutions, both for the protection of members of the trade union movement and to combat impunity, and the substantive results obtained in this regard.

The Committee further notes the detailed information provided by the Government concerning the phenomenon of anti-union violence and the action taken by public institutions in this regard. The Government indicates that, despite a reduction in the overall number of murders by 36 per cent between 2014 and 2018, Colombia continues to be confronted by significant security challenges, particularly in view of the complexity and evolution of criminal groups linked to illegal economic activities. The Government further indicates that the threat of these groups is particularly intensive towards persons and communities that are building social capital, who include social leaders and defenders of rights. The Committee notes the Government’s indication that, under the overall coverage of the National Development Plan 2018–22, there exists a broad and intense State policy to take up these challenges, and particularly to protect members of the trade union movement and to combat impunity.

With regard to the protection of members of the trade union movement who are at risk, the Committee notes the Government’s indication that: (i) Decree No. 2137 of 2018 established the Intersectoral Commission for the development of the Appropriate Action Plan (PAO) for the prevention and individual and collective protection of the rights to life, freedom, safety and security of human rights defenders, social and communal leaders and journalists; (ii) the “PAO Commission” is responsible for guiding and coordinating the various protection programmes and the resources of the various Government bodies involved in the prevention and protection of the rights and safety of human rights defenders, social and communal leaders and journalists; (iii) the General Command of the Armed Forces activated the National Immediate Response System for Progressive Stabilization (SIRIE), with a view to monitoring factors of instability in regional security and adopting, among others, protection measures for trade union leaders, social leaders and human rights defenders; (iv) the national police created an elite body with a multidimensional approach to disband the criminal organizations threatening human rights defenders and social and political movements; (v) during the course of 2018, a total of 399 risk assessments were undertaken for members of the trade union movement, and 232 cases of extraordinary risk and 163 cases of ordinary risk were identified; (vi) the National Protection Unit (UNP) is currently providing protection for 357 trade union leaders and members and 13,411,370,181 Colombian pesos (COP) (approximately US$46 million) have been allocated for protection in 2019; and (vii) the UNP is undertaking studies of the collective risk level for the unions affiliated to FECODE and SINTRAINAGRO.

With reference to the action taken to combat impunity, the Committee notes the Government’s indication that: (i) the investigation of crimes against trade unionists was included in the Strategic Plan of the Office of the Public Prosecutor 2016–20; (ii) in August 2016, the Elite Committee to promote action and follow-up crimes against trade unionists, under the direct leadership of the Vice-Prosecutor, became operational; (iii) the Inter-Institutional Human Rights Commission, which includes the participation of the trade union confederations, the ANDI and all the relevant state institutions, continues to provide the opportunity for an exchange of information and views on action to combat impunity in relation to anti-union violence; (iv) since 2001, there have been 800 convictions for the murder of members of the trade union movement; (v) during the period between 2011 and June 2019, a total of 205 murders of trade unionists were referred to the Office of the Public Prosecutor, with progress being made in the investigations in 44.39 per cent of the cases (including cases in which a presumed guilty party was identified and an arrest warrant ordered, as well as those in which a conviction was obtained) and 151 people were imprisoned for these murders; (vi) the rate of clarification of the cases is higher than the average for general murder cases (28.4 per cent); and (vii) between 1 January 2018 and September 2019, a total of 28 investigations were opened into murders of members of the trade union movement, with a resolution rate of 48 per cent, and convictions have been obtained in three cases.

The Committee also notes the information provided by the Government on the investigations into 23 of the 34 murders committed in 2018, as denounced by the ITUC, with an indication that in the cases of seven of these murders arrests have been made, and that there are suspects in the other cases. Recognizing the gravity of the offences described above, the Committee requests the Government to continue providing information on the progress made in the corresponding investigations and to provide information on the action taken by the public authorities in relation to all of the 34 murders reported by the ITUC for 2018.

The Committee once again acknowledges the significant efforts made by the public authorities, both with regard to the protection of members of the trade union movement who are at risk and in the investigation and punishment of acts of anti-union violence. The Committee particularly welcomes in this respect the active commitment of the various relevant State bodies, the initiatives taken to improve the effectiveness of State action through inter-institutional coordination and the consultations held with the social partners in the context of the Inter-Institutional Human Rights Commission. The Committee takes due note of the 800 convictions in cases of murders of members of the trade union movement since 2001.

Nevertheless, the Committee expresses deep concern at the persistence of many acts of anti-union violence in the country and, in a context of increasing numbers of attacks on social leaders in general, at the resurgence of murders of members of the trade union movement in 2017 and 2018 and the greater concentration of attacks on trade union leaders reported by the unions. While being aware of the complexity of the challenges faced by the agencies responsible for criminal investigation, the Committee notes the absence of data on the number of convictions of the instigators of acts of anti-union violence. The Committee emphasizes in this regard the essential importance of the identification and the conviction of the instigators of such crimes in order to break the cycle of anti-union violence. In view of the magnitude of the challenges described, and acknowledging the significant action taken by the public authorities, the Committee urges the Government to continue strengthening its efforts to provide adequate protection to all trade union leaders and members who are at risk, and to their organizations, and to ensure that all of the acts of anti-union violence, including murders and other acts, reported in the country are investigated and that the instigators and perpetrators are convicted. While referring to the recommendations made by the Committee on Freedom of Association in its recent examination of Case No. 2761 (389th Report of the Committee on Freedom of Association, June 2019), and the follow-up to Case No. 1787 (383rd Report, October 2017), the Committee hopes that all the necessary further measures will be taken and that the necessary resources will be allocated to significantly improve the effectiveness of the investigations and criminal proceedings undertaken for the identification and punishment of the instigators of acts of anti-union violence. The Committee requests the Government to provide detailed information on this subject.

Collective compensation measures for the trade union movement. In its previous comment, the Committee requested the Government to provide information on the implementation of the collective compensation measures envisaged for the trade union movement in view of the violence committed against it. The Committee notes with interest that, under the terms of Decree No. 624 of 2016, in the presence of the President of the Republic, the Standing Dialogue Forum with the trade union confederations CUT, CTC, CGT and the Colombian Federation of Teachers (FECODE) for the collective compensation of the trade union movement was established on 23 October 2019 and that, on 30 October 2019, the Comprehensive Care and Compensation Unit for Victims started operating within the context of the Forum. The Committee requests the Government to continue providing information on the work of the Forum and on the implementation in practice of collective compensation measures for the trade union movement in view of the violence committed against it.

Section 200 of the Penal Code. The Committee notes the information provided by the Government on the application of section 200 of the Penal Code, which establishes penal sanctions for a series of acts that are contrary to freedom of association and collective bargaining. The Committee notes the Government’s indication that: (i) Act No. 1826, of 12 January 2017, establishes a special expedited criminal procedure which also covers the types of crimes set out in section 200 of the Penal Code; (ii) as a result of the joint work plan developed since August 2016 by the Office of the Public Prosecutor and the Ministry of Labour, the examination has been concluded of 86 per cent of the 2,530 cases of the alleged violation of section 200, with only 14 per cent of these cases still under investigation; and (iii) 143 cases (7 per cent of the total) have been subject to conciliation procedures, 81 of them since August 2016.

The Committee however notes the indication by the CUT, CTC and CGT that there is complete impunity in this regard since, despite over 2,500 complaints being registered, violations of section 200 of the Penal Code have not resulted in any convictions. The Committee notes that, in its reply to these observations, the Government indicates that 10 cases are currently before the courts, which is a historical development in this type of case. While taking due note of the joint work plan of the Office of the Public Prosecutor and the Ministry of Labour, and welcoming the increase in the number of cases resolved through conciliation, the Committee considers that the absence of convictions for violations of freedom of association, despite the high number of complaints made since 2011, requires a review by the authorities concerned. The Committee requests the Government to engage, together with the Office of the Public Prosecutor and the social partners, in an assessment of the effectiveness of section 200 of the Penal Code and to report the outcome and any action taken as a result.

Articles 2 and 10 of the Convention. Trade union contracts. In its previous comments, the Committee requested the Government to provide its comments in relation to the allegations made by the CUT and CTC respecting the impact of trade union contracts on the application of the Convention. Trade union contracts, as envisaged in Colombian legislation, are contracts in which one or more unions undertake to provide services or perform work through their members for one or more enterprises or employers’ organizations. The Committee notes that, since its most recent comment, the Committee on Freedom of Association has examined a complaint made by the CUT, in which the trade union confederation alleges that trade union contracts undermine the purpose and independence of trade unions, the right of workers to organize and free and voluntary collective bargaining (Case No. 3137, 387th Report, October 2018).

The Committee notes the Government’s indication that trade union contracts are a legal concept recognized by the legislation for the purpose of enabling trade unions to participate in the management of enterprises, the promotion of collective work and employment generation, and that the high courts of the country have examined the concept in detail, confirming its validity, and that there are successful cases of trade union contracts that have permitted the recovery of enterprises which were on the point of closure. The Committee notes that the Government indicates more specifically that: (i) the legislation (in particular the Substantive Labour Code and the Decree No. 036 of 2016) establishes a series of requirements to prevent the undue use of this type of contract, and emphasizes in particular the requirement for a trade union covered by a trade union contract to have been established for at least six months before the conclusion of the contract, and the requirement that the union already have affiliated workers in the company with which the contract is to be signed; (ii) the trade union contract has to be approved by the general assembly of the union, which also has to adopt the rules determining the conditions for the performance of the work envisaged in the contract and the corresponding benefits for the workers; (iii) the union is responsible for compliance with the requirements arising directly out of the contract, including those specifying the benefits for members who perform the agreed work; (iv) according to the ruling of the Constitutional Court, there is no employer–worker relationship between the union and its members who perform the work covered by the trade union contract, which would seriously prejudice the right to organize; (v) Ministerial Decision No. 2021 was adopted on 9 May 2018 to control the undue use of trade union contracts used as an unlawful employment mediation mechanism; (vi) as a result of the significant controls undertaken by the labour inspection services and, in particular, by the Special Investigations Unit of the Ministry of Labour, the number of trade union contracts registered is falling significantly, with almost all of the trade union contracts registered between 2014 and 2018 being in the health sector (98.2 per cent in the private sector and 99.55 per cent in the public sector). The Committee also notes that the ANDI expresses a similar position to the Government, and emphasizes in particular that it is necessary to respect the autonomy of trade unions to conclude trade union contracts, as has been done for example, by the CGT trade union confederation.

The Committee notes that the CUT and CTC, in addition to reiterating their previous observations that trade union contracts are an instrument to perpetuate and extend unlawful employment mediation and undermine trade union activity through the creation of false trade unions, indicate that: (i) the concept of the trade union contract allows real dependent employment relationships to be hidden; (ii) the workers involved with trade union contracts are not in practice able to join a union other than the one for which they provide their services and cannot engage in collective bargaining as they do not have an employment contract; (iii) despite the Government’s indications, labour inspection activities are not focussed on trade union contracts; (iv) no penalties are known to have been imposed for the abuse of trade union contracts; (v) the phenomenon is continuing to grow in the health sector, where trade union contracts are permitting the maintenance, through false trade unions, of unlawful employment mediation, which was previously undertaken by associated work cooperatives; and (vi) the elimination of trade union contracts is the necessary solution to bring an end to the harmful effects described above.

The Committee notes the indication by the CGT in this regard that: (i) although trade union contracts may be a valid precept, their management is complex and requires strong unions; and (ii) in practice, a substantial number of associated work cooperatives have been converted into false unions to conclude trade union contracts and continue engaging in illegal employment mediation, especially in the health sector. In this respect, the Committee notes that, in its comments on the observations of the workers’ organisations, the Government states that: (i) according to the database of the Ministry of Labor’s trade union archive group, 15 of the 17 trade union organizations in the health sector considered by the CGT to be false unions were registered with the Ministry of Labor between June and August 2011 and have a statute in force, while two others are not registered in the database; and (ii) according to the jurisprudence of the Constitutional Court, the Ministry of Labour is not competent to control the legality of trade union statutes, and therefore the statutes of the mentioned trade union organizations will be considered valid until there is a court decision to the contrary.

The Committee observes that the elements described above show that trade union contracts are a very specific precept distinguished by the so-called union security clauses, as the union does not confine itself to ensuring that all the workers engaged in an enterprise are members, but it also takes direct responsibility, through its members, for a productive activity on behalf of an enterprise. The Committee notes that, in this context, the union is responsible for organizing work by its members and for providing them with the benefits corresponding to the work performed. In this regard, the Committee is of the view that the exercise by a workers’ organization of management and decision-making powers over the employment of its members is likely to generate a conflict of interest with its function of defending their professional interests.

From a practical perspective, the Committee notes that both the Government and the three trade union confederations agree that more than 98 per cent of trade union contracts are concentrated in the health sector. The Committee observes with concern that the trade union confederations consider that associated work cooperatives, which previously engaged in unlawful employment mediation activity in such sector, have taken on the form of false unions so as to be able to continue such activities by means of trade union contracts. On the basis of the above, while noting that, in its recommendations made within the framework of Case No. 3137, the Committee on Freedom of Association requested further information on the operation of trade union contracts, the Committee, emphasizes that the attribution to a workers’ union of the power of management and decision-making concerning the employment of its members is likely to generate a conflict of interest and may endanger its capacity to fulfil the specific functions of trade unions of supporting and defending independently the claims of their members in relation to employment and terms and conditions of work. The Committee requests the Government to: (i) conduct a detailed assessment of the use of trade union contracts, in particular in the health sector; and (ii) after sharing the results of this assessment with the social partners, take the necessary measures, including legislative measures where necessary, to ensure that the precept of trade union contracts does not undermine the trade union rights of workers and is not used for purposes that are incompatible with Article 10 of the Convention. The Committee requests the Government to provide all the necessary information in this regard.

Article 4. Judicial cancellation of trade union registration. The Committee notes the observations of the CUT and CTC relating to section 380(2) of the Substantive Labour Code, which establishes an expedited judicial procedure for the cancellation of the registration of trade unions. With reference to nine specific cases, the trade union confederations allege in this regard that: (i) this brief and summary procedure only offers minimal guarantees for the union and its members; and (ii) it would appear that the procedure is being used more frequently by certain enterprises to undermine and weaken the trade union movement, for which reason it should be repealed. The Committee notes the Government’s indication in its reply to these observations that the mechanism of the judicial cancellation of trade union registration is intended to protect the freedom of work. Recalling that the cancellation of trade union registration constitutes an extreme form of interference by the authorities in the activities of organizations, and that it is important for such measures to be accompanied by all the necessary guarantees that can only be ensured by normal judicial procedures, the Committee requests the Government to provide its comments on the allegations made by the trade union organizations that the expedited procedures set out in section 380 of the Labour Code does not provide adequate procedural safeguards.

Articles 3 and 6. Right of workers’ organizations to organize their activities and to formulate their programmes. Legislative issues. The Committee recalls that for many years it has been referring to the need to adopt measures to amend the legislation in relation to: (i) the prohibition of strikes by federations and confederations (section 417(i) of the Labour Code) and in a very broad range of services that are not necessarily essential in the strict sense of the term (section 430(b), (d), (f) and (h); section 450(1)(a) of the Labour Code; Taxation Act 633/00 and Decrees Nos 414 and 437 of 1952, 1543 of 1955, 1593 of 1959, 1167 of 1963, and 57 and 534 of 1967); and (ii) the possibility to dismiss workers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), including in cases in which the unlawful nature of the strike is a result of requirements that are contrary to the provisions of the Convention. The Committee also recalls that in its previous comment it noted with interest ruling C 796 of 2014 of the Constitutional Court, which urged the legislative authorities to regulate within a period of two years the exercise of the right to strike in the oil sector, with the need to identify the circumstances in which the interruption of work in this sector results in danger to the life, personal safety or health of the whole or part of the population, and the circumstances in which this is not the case. The Committee requested the Government to provide information on the measures taken to give effect to this ruling.

With reference to section 417 of the Labour Code, which prohibits federations and confederations from calling strikes, the Committee notes that the Government and the ANDI reiterate that the Constitutional Court has ruled on this provision and found that the functions of trade unions include the calling of strikes, while federations and confederations discharge the functions of providing advisory services to their member organizations. Further noting the persistent criticisms made by national and international trade union confederations concerning the prohibitions set out in section 417 of the Labour Code, the Committee recalls once again that, under the terms of Article 6 of the Convention, the guarantees of Articles 2, 3 and 4 apply fully to federations and confederations, which should therefore be able to determine their programmes in full freedom. The Committee also emphasizes that, in accordance with the principle of trade union independence as set out in Article 3 of the Convention, it is not for the State to determine the respective roles of first-level unions and of the federations and confederations to which they are affiliated. In light of the above, and on the basis of Articles 3 and 6 of the Convention, the Committee once again requests the Government to take the necessary measures in the near future to eliminate the prohibition of the right to strike of federations and confederations as set out in section 417 of the Labour Code. The Committee requests the Government to provide information on any developments in this regard.

With regard to the prohibition of the right to strike in a very broad range of services that are not necessarily essential in the strict sense of the term and which include, among others, transport services and the oil sector, the Committee notes the Government’s indication concerning the submission on 20 July 2018 of Bill No. 10 of 2018 to the House of Representatives. The Government indicates that the objective of the Bill is to amend section 430 of the Labour Code with a view to limiting the restrictions on the exercise of the right to strike in certain sectors, including the oil sector, on condition that a minimum service can be guaranteed.

The Committee notes that the ANDI, after expressing the view that the right to strike is not covered by the Convention, indicates that Colombian legislation on strikes in essential services is fully satisfactory.

The Committee however notes that the national trade union confederations indicate that: (i) the Government has not taken any initiative to give effect to the Committee’s comments in relation to strikes in essential services and, at the initiative of the Government and the employers, Bill No. 10 of 2018 was removed from the legislative process without any official debate; (ii) the CUT and CTC submitted a new Bill (No. 071 of 2019) to bring the regulations respecting the right to strike into compliance with ILO Conventions; (iii) in 60 per cent of cases, the few strikes called by workers and their organizations are found to be unlawful by the courts with consequences that are contrary to the provisions of ILO Conventions (dismissals, dissolution of the union, the criminal or financial responsibility of trade union leaders), as illustrated by the cases of the various strikes called in private sector enterprises. In this regard, the Committee notes that the ITUC and the national trade union confederations particularly denounce the fact that, by a ruling of 29 November 2017 of the Labour Chamber of the Supreme Court, a strike by pilots in an airline was found to be unlawful, resulting in the dismissal of 110 pilots and an application for the dissolution of the ACDAC union, and that these matters are covered by Case No. 3316 of the Committee on Freedom of Association.

With regard to the ruling by the Labour Chamber of the Supreme Court, the Committee notes that the Chamber “attaches cardinal importance to the guidance provided by the ILO supervisory bodies that there should not be an absolute prohibition of the right to strike in air transport” and … “reminds the Congress of the Republic of the need to update the legislation respecting the right to strike in essential services”. In this regard, the Committee recalls that it considers that: (i) essential services in which the right to strike may be restricted or prohibited are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (ii) although the concept of essential services is not absolute, the Committee has considered that sectors such as oil and public transport do not constitute essential services in the strict sense of the term, but are public services of overriding importance in which the maintenance of a minimum service may be required. Noting that, on the one hand, there has been no progress in the legislative reforms requested by the Committee in relation to strikes in essential services, but that, on the other hand, both the Constitutional Court, in relation to the oil sector, and the Supreme Court, with regard to the various services defined as essential in the legislation, are calling for a revision of the legislation to better limit the restrictions imposed on the exercise of the right to strike, the Committee firmly expects that the Government will take the necessary measures to revise the legislative provisions indicated previously in the near future as indicated in its comments. The Committee requests the Government to provide information on developments in this regard and recalls that it may have recourse to the technical assistance of the Office.

Finally, the Committee notes the Government’s indication that, in the meeting held on 1 August 2019, it was decided to focus the work of the international affairs subcommittee of the Standing Committee for Dialogue on Wage and Labour Policies on examining the comments made by the Committee, including those on the present Convention. The Committee hopes that the work of the subcommittee will facilitate the adoption of the various measures requested by the Committee to give full effect to the Convention. The Committee recalls that the Government may request the technical assistance of the Office in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2020.]