Observación (CEACR) - Adopción: 2021, Publicación: 110ª reunión CIT (2022)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Colombia (Ratificación : 1976)

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Observación

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The Committee notes the joint observations of the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT) received on 1 September 2021. The Committee notes that these observations relate to matters examined by the Committee in its comments, as well as allegations of violations of the Convention in practice. The Committee also notes the allegations of anti-union discrimination contained in the observations of the International Trade Union Confederation relating to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), received on 1 September 2021, as well as the Government’s comments in this regard.

The Committee also notes the observations of the National Employers’ Association of Colombia (ANDI), transmitted by the International Organisation of Employers (IOE) on 1 September 2021, which refer to matters raised in the Committee’s previous direct request relating to this Convention and, in relation to the matters examined in the present observation, refer to its 2020 observations.

Articles 1 and 2 of the Convention. Adequate protection against anti-union discrimination and interference. In its previous comments, having noted the slowness of the various administrative and judicial mechanisms for protection against anti-union discrimination and the recurrent criticisms by the unions concerning their lack of effectiveness, the Committee requested the Government, in consultation with the social partners, to launch a comprehensive examination of these mechanisms with a view to the adoption of the necessary measures to ensure the rapid imposition of effective sanctions in the event of anti-union acts. The Committee notes the Government’s indication that, in the context of the national inspection strategy, the Department of Territorial Inspection, Supervision, Control and Management formulates an annual strategic plan which includes within its priorities enterprises which have registered collective accords and contracts.

The Committee notes that the Government also refers to the administrative investigations undertaken by the Ministry of Labour into anti-union discrimination, in relation to which it provides the following statistics: (i) in 2020, there were 351 administrative labour disputes relating to complaints of acts against freedom of association and collective bargaining, of which 83 gave rise to a decision (of which 51 were given effect); (ii) between 1 January and 15 June 2021, there were 92 administrative labour disputes, of which 13 gave rise to a decision (of which four have already been given effect). The Committee notes that the Government also provides information on the general activities of the labour inspectorate, including detailed descriptions of the measures adopted by the labour inspectorate during the health emergency resulting from the COVID-19 pandemic, on inspection procedures relating to penalties and the collection of fines and on the frequent training courses provided to labour inspectors.

The Committee further notes the information provided by the Government on the investigations undertaken under section 200 of the Penal Code, which criminalizes violations of the rights of association and assembly, subjects that have been examined by the Committee in recent years within the context of Convention No. 87 in relation to acts of anti-union violence. The Committee notes the Government’s indication that: (i) the Office of the National Public Prosecutor received a total of 90 complaints during the course of 2020, which was clearly lower than in previous years, probably, as emphasized by the Government, due to suspensions of work as a result of the COVID-19 pandemic; (ii) in one case, the issue was the subject of conciliation; in five cases the case was set aside due to related offences, or in other words the Public Prosecutor decided to continue the investigation under other criminal charges; 29 cases were set aside, either because there was no evidence of a crime or the complainant was not legitimate; of the 90 cases, 53 are still active (48 at the pre-trial stage and five under investigation). The Committee notes the Government’s further indication that the Ministry of Labour and the Office of the National Public Prosecutor have created an elite group with a view to promoting the investigation of anti-union offences.

The Committee also notes that the trade union confederations reiterate their denunciation of the ineffectiveness of the various administrative and judicial protection mechanisms against anti-union discrimination. With reference to administrative labour disputes, the confederations indicate that: (i) the procedure envisaged in section 354 of the Substantive Labour Code is not expeditious and in practice is excessively slow; (ii) on the basis of the statistics provided by the Government, only 11.5 per cent of the administrative labour disputes registered in 2020 and 2021 have so far resulted in a decision, without taking into account the possibility of appeals in those cases; the preliminary verification stage may last four or five years and many disputes from previous years have still not been resolved. The Committee notes that, in relation to the investigations by the Office of the National Public Prosecutor into complaints of violations of section 200 of the Penal Code, the trade union confederations indicate that: (i) following ten years of the labour action plan, in the context of which section 200 was amended, there have still been no investigations or sanctions imposed by the Office of the National Public Prosecutor; (ii) in addition to the consequences of the COVID-19 pandemic, the reduction in 2020 in the number of complaints of violations of section 200 is due to the loss of credibility of the mechanism, which suffers in particular from very long delays. The Committee finally notes that the trade union confederations once again denounce the absence of an expeditious judicial mechanism for protection against acts of interference and anti-union discrimination (with the exception of the special procedure for lifting trade union protection). Providing information on a series of specific cases, they indicate in this respect that: (i) unions only have access to ordinary labour courts through procedures that often take longer than four or five years, which makes the mechanism inoperative for the restoration of rights; and (ii) in the majority of cases, the courts find that appeals for constitutional protection, which are the most expeditious, are not valid to protect freedom of association, as there are other means of defence, such as the ordinary labour courts and the administrative penalty procedure of the Ministry of Labour.

The Committee notes the various elements provided by the Government and the unions. The Committee observes in this respect that: (i) the available data shows that the examination of administrative labour disputes in relation to freedom of association often takes a very long time; (ii) the Government has not provided information on cases in which criminal penalties have been handed down for violations of section 200 of the Penal Code, despite the high number of criminal complaints lodged since 2011; and (iii) the Government has still not expressed a view on the effectiveness of cases brought before labour tribunals. In this context, the Committee regrets that the Government has not provided information on the preparation of a comprehensive examination of the existing protection mechanisms against anti-union discrimination in consultation with the social partners, despite the Committee making this request on several occasions since 2016, and the request to the Government made by the Committee on Freedom of Association several times (Case No. 3061, 381st Report, March 2017, and Case No. 3150, 387th Report, October 2018). In light of the above, recalling the fundamental importance of protection against anti-union discrimination for the effective exercise of freedom of association, the Committee urges the Government, after consulting the social partners, to take the necessary measures, including through laws and regulations, to revise the procedures for the examination of administrative labour disputes in relation to freedom of association, on the one hand, and the judicial procedures concerning acts of anti-union discrimination and interference, on the other, in order to ensure that both are examined promptly and effectively. The Committee requests the Government to provide information on the progress made in this regard and recalls that it may avail itself of the technical assistance of the Office.

Articles 2 and 4. Collective accords with non-unionized workers. The Committee recalls that it has been requesting the Government since 2003 to take the necessary measures to ensure that collective agreements with non-unionized workers (collective accords) can only be concluded in the absence of trade union organizations. The Committee notes that the Government reiterates its position, in line with that of the ANDI, that: (i) collective accords with non-unionized workers are a form of social dialogue and collective bargaining recognized and regulated by the law and the case law of the Constitutional Court; and (ii) within this framework, collective accords can only be concluded when there is no union in the enterprise representing over one-third of the workers and the conditions negotiated in collective accords and agreements must be the same to prevent anti-union discrimination and any breach of the principle of equality. The Committee notes that the Government also indicates that the undue use of collective accords is being closely monitored by the competent authorities and penalized where necessary, and that their impact on association in unions is under examination in accordance with the considerations of the Organisation for Economic Co-operation and Development (OECD), the United States and Canada. The Government indicates in this regard that: (i) the labour inspection services carried out 23 planned inspections in 2020 of enterprises focussing on the use of collective accords; (ii) on 15 June 2021, the territorial labour inspection departments were examining 62 cases of the undue use of collective accords; (iii) through the Special Investigation Unit, 11 claims were being examined between January 2020 and 15 June 2021 relating to the undue use of collective accords; and (iv) as a result of the action described above, the number of collective accords concluded has decreased significantly, from 253 deposited in 2016 to 73 in 2020.

The Committee also notes that the national union confederations reiterate their previous allegations in their observations concerning the anti-union impact of collective accords, even in cases where the benefits of collective accords, which apply to non-unionised workers, are not more favourable than those agreed in the corresponding collective agreements. The trade union confederations also denounce: (i) the practice of first concluding a collective accord with non-unionized workers so as to then impose during the negotiation of the collective agreement a ceiling on benefits that cannot be improved upon, which removes any relevance from the negotiations undertaken by the union, thereby acting as a powerful disincentive to trade union membership; (ii) the supervision of the Ministry of Labour in relation to the unlawful nature of collective accords is biased and ineffective, as it focuses solely on verification of whether the content of collective accords is more favourable than that of collective agreements, without examining the common practice described in the previous point nor the other anti-union strategies involved in the conclusion of collective accords; and (iii) the lower numbers of collective accords deposited in 2020 is probably the consequence of the COVID-19 pandemic, which also resulted in fewer collective agreements being concluded that year.

While noting the information provided by the Government on the action taken to control the use of collective accords on the basis of the current legislation, the Committee regrets to note that there has been no progress in taking into account the comments that it has been making for many years on the need to revise the abovementioned legislation. The Committee is therefore bound to recall once again that Article 4 of the Convention recognizes, as the parties to collective bargaining, employers or their organizations, on the one hand, and workers’ organizations, on the other, in recognition that the latter offer guarantees of independence that may be absent in other forms of association. The Committee has therefore always considered that direct bargaining between the enterprise and unorganized groups of workers, in avoidance of workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as envisaged in Article 4 of the Convention. Moreover, the Committee has repeatedly noted that in practice the negotiation of terms and conditions of employment and work by groups that do not offer sufficient guarantees to be considered as workers’ organizations can be used to undermine the exercise of freedom of association and weaken the existence of workers’ organizations with the capacity to defend the interests of workers independently through collective bargaining. In light of the above, the Committee once again urges the Government to take the necessary measures to ensure that the conclusion of collective accords with non-unionized workers (pactos colectivos) is only possible in the absence of trade union organizations. The Committee hopes that the Government will be in a position to report progress in this regard in the near future.

Article 4. Personal scope of collective bargaining. Apprentices. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the remuneration of apprentices is not excluded by law from the scope of collective bargaining. The Committee notes the Government’s reiterated indication that, in accordance with the national legislation and the case law of the Constitutional Court, the apprenticeship contract is not a contract of employment, but is designed to help young persons who are still at the training stage. Recalling once again that the Convention does not exclude apprentices from its scope of application and that the parties to collective bargaining should therefore be able to decide to include the subject of their remuneration in their collective agreements, the Committee urges the Government to take the necessary measures to ensure that the remuneration of apprentices is not excluded by law from the scope of collective bargaining.

Subjects covered by collective bargaining. Pensions. After noting the Government’s indications that Legislative Act No. 1 of 2005 does not prevent the parties to collective bargaining, in both the public and private sectors, from improving on pensions through supplementary benefits based on voluntary savings, the Committee previously requested the Government to provide specific examples of collective agreements which provide for supplementary pension benefits. The Committee notes that the Government once again indicates that: (i) through voluntary savings, those covered by the Colombian pension system can make periodic contributions, or pay in amounts that are higher than the compulsory contributions set out by law, with a view to receiving a higher pension; and (ii) the possibility for a third party to pay contributions on behalf of the beneficiary makes it possible for the employer to act as a sponsor, and the possibility therefore exists for this supplementary benefit to be covered by collective bargaining. The Committee nevertheless observes that the Government has not provided specific examples of collective agreements which contain clauses of this nature. The Committee therefore reiterates its request for information on the application of this possibility in practice. It also invites the Government, in its activities to promote collective bargaining, to inform the social partners of the possibility, within the framework of and in accordance with the General Pensions System, to negotiate clauses in collective agreements providing for supplementary pension benefits.

Promotion of collective bargaining in the public sector. The Committee notes with satisfaction the Government’s indication that a new National State Agreement was concluded on 18 August 2021 with all the confederations in the country which benefits around 1,200,000 public sector workers. The Committee notes in particular the Government’s indication that: (i) in accordance with the agreement, Decree No. 961 of 22 August 2021 was adopted setting the remuneration for positions exercised by public employees in the executive branch, autonomous regional and sustainable development corporations, and issuing other provisions; and (ii) the agreement contains a series of clauses intended to reinforce the protection of the exercise of freedom of association in the public sector. The Committee also notes the indications by the CUT, CTC and CGT which: (i) welcome the conclusion of the agreement; (ii) nevertheless regret the high level of non-compliance with previous agreements, as noted by the Commission for the verification of the agreements concluded between the National Government and workers in the State sector, which met in July and August 2021; and (iii) denounce the role played by the Office of the Comptroller General of the Nation and its departmental offices which, through investigations into potential prejudices to the resources of public bodies, is undermining compliance with the agreements that have been concluded, and is likely to have a dissuasive effect on future negotiations. The Committee requests the Government to pay due attention to the observations of the trade union confederations and to indicate the action taken in this regard.

Promotion of collective bargaining in the private sector. The Committee recalls that in its previous comments it noted with concern the very low level of coverage of collective bargaining in the private sector. The Committee also noted the indication by the trade union confederations that a series of both legal and practical obstacles and inadequacies resulted in the complete absence of collective bargaining above the enterprise level, which in turn contributed to the very low coverage of collective bargaining in the private sector. The Committee requested the Government, in consultation with the social partners, to take all measures in the near future, including legislative measures where appropriate, to promote the use of collective bargaining in the private sector at all appropriate levels.

The Committee notes the Government’s indication that: (i) 194 collective agreements were signed in 2020 (in comparison with 572 in 2019, 490 in 2018 and 380 in 2017); (ii) collaboration with the Government of Canada is continuing for the development of a registration system which will make it possible to determine the coverage rate of collective bargaining; (iii) it is still planned to amend Decree No. 089 of 2014 to facilitate bargaining in a context of a multiplicity of unions by providing that, where there are several unions in the same enterprise, they will be required to form a joint bargaining committee and submit unified claims; and (iii) and the Government continues to be willing to support and accompany, without interference, the social partners when they so request. The Committee also notes that the trade union confederations: (i) place emphasis on the reduction in the number of collective agreements concluded in 2020 and point to the possible effects of the COVID-19 pandemic in this regard; (ii) regret the continuing absence of multi-level bargaining; and (iii) consider that the case of professional football is symptomatic in this respect where the clubs, the Colombian Football Federation (FCF) and the Major Division of Professional Football (Dimayor), institutions which, according to the trade unions confederations, are competent to determine the working conditions in the sector, refuse to bargain with the Colombian Association of Professional Footballers (ACOLFUTPRO), in relation to which the Ministry of Labour set aside the complaint by ACOLFUTPRO concerning the refusal to negotiate.

While noting the information provided by the Government, reiterating indications provided in previous reports, the Committee regrets to note that, despite the very low level of coverage of collective bargaining in the private sector, the Government does not refer to any further specific measures or initiatives adopted to resolve this situation. The Committee particularly notes with concern the absence of action to facilitate bargaining at levels higher than the enterprise level in a context in which: (i) collective bargaining at the sectoral level, in contrast with enterprise bargaining, is not covered by a specific legislative framework (with the exception of the provisions of the Substantive Labour Code relating to the possibility of extending collective agreements) and is almost non-existent in practice (with the exception of the banana sector in Urabá; and (iii) workers in small enterprises may have difficulty in gaining access to enterprise-level collective bargaining as they do not have enterprise unions, for the establishment of which a minimum of 25 members is required.

Recalling once again that, under the terms of Article 4 of the Convention, collective bargaining should be possible at all levels and should be promoted in a manner that is appropriate to national conditions and that, in accordance with Article 5(2)(d) of the Collective Bargaining Convention, 1981 (No. 154), which has been ratified by Colombia, the Government is required to ensure that collective bargaining is not hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules, the Committee requests the Government: (i) following consultations with the social partners, to take measures, including legislative measures, for the effective promotion of collective bargaining in the private sector, especially at levels higher than the enterprise level; and (ii) to provide detailed information on the coverage rate of collective bargaining in the private sector.

Settlement of disputes. Committee for the Handling of Conflicts referred to the ILO (CETCOIT). The Committee notes the information provided by the Government on the activities of the CETCOIT, a tripartite body for the resolution of disputes relating to freedom of association and collective bargaining. The Committee notes with interest the Government’s indication that: (i) in 2020 and 2021, the CETCOIT held 71 meetings, during which 23 cases were identified for the promotion of conciliation decisions and agreements, with 48 follow-up meetings; (ii) agreements were concluded in 95 per cent of the cases, with the signature of 20 reports; (iii) effect was given to the recommendation made by the Committee on Freedom of Association in relation to Case No. 2657; and (iv) the conclusion was facilitated of two collective agreements in the private sector and one agreement in the public sector. The Committee welcomes the results achieved by the CETCOIT and requests the Government to continue providing information in this regard.

In its previous comments, the Committee noted the Government’s indications that the international affairs subcommittee of the Standing Committee for Dialogue on Wage and Labour Policies would follow up the comments made by the Committee of Experts on the application of the Conventions ratified by Colombia and hoped that the work of the subcommittee would facilitate the adoption of the various measures requested by the Committee to give full effect to the Convention. The Committee regrets to note that it has not received further information on this subject. The Committee finally recalls that the Government may request ILO technical assistance in this regard.

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