Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

The Committee notes the Government's report, the information given by a government representative at the Conference Committee in 1993 and the subsequent discussions. The Committee recalls that its previous comments concerned:

-- the ban on more than one trade union in an enterprise, institution or establishment (section 357 of the Labour Code) and the refusal to register a second union in an enterprise (section 366(4)(c) of the Labour Code amended by section 46 of Act No. 50), and the requirement that, in order for a trade union to be registered, the labour inspector must certify that there is no other union (section 365(g) of the Code);

-- the requirement that, in order to form a union, two-thirds of its members must be Colombian (section 384 of the Code);

-- the supervision of the internal management and meetings of unions by public servants (section 486 of the Code);

-- the presence of the authorities at general assemblies convened to vote on referral to arbitration, or on the calling of a strike (new section 444, last subsection, of the Code);

-- the requirements for eligibility for trade union office (sections 388(1)(a) and (c), 422(1)(a) and (c) and 432(2) of the Code): a person must be Colombian, belong to the trade or occupation and have exercised it for more than six months; and the requirement in sections 388(1)(g) and 422(1)(g)) that a person must not have been condemned to a serious penalty, unless he has been rehabilitated, nor sued for ordinary offences at the time of election (this applies to trade union leaders only);

-- the suspension, for up to three years, with loss of trade union rights, of trade union officers who have been responsible for the dissolution of their unions (new section 380(3) of the Code);

-- the prohibition on federations and confederations from calling a strike (section 417(1) of the Code);

-- the prohibition of strikes, not only in essential services in the strict sense of the term, but also in a very wide range of public services which are not necessarily essential (new section 450(1)(a) of the Code and Decrees Nos. 414 and 437 of 1952, 1543 of 1955, 1593 of 1959, 1167 of 1963, 57 and 534 of 1967);

-- the power of the Minister of Labour to refer a dispute to arbitration when a strike lasts for 60 calendar days (section 448(4) of the Code);

-- the possibility of dismissing trade union officers who have intervened or participated in an unlawful strike (new section 450(2) of the Code).

The Committee notes with interest that, according to the Government, once the Standing Tripartite Committee on Labour has been established, the amendment of the following provisions will be submitted to it for consideration:

-- the requirement that, to form a trade union, two-thirds of the members must be Colombian (section 384 of the Code); and

-- the requirement that persons must belong to the trade or occupation in order to be eligible for trade union office (sections 388(1)(c) and 432(2) of the Code and section 422(1)(c) of the Code, for federations).

With regard to the authorities' attendance at trade union assemblies (section 444, last subsection of the Code), the Committee also notes that Decree No. 2519 of 14 December 1994, which regulates sections 444, 445 and 448 of the Code limits such attendance exclusively to observing voting on referral to arbitration, and the calling or continuation of a strike. In this respect, the Committee recalls that the freedom of assembly constitutes a fundamental aspect of trade union rights and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 35). Therefore, the Committee requests the Government to repeal the provisions which allow the authorities' attendance at trade union assemblies during votes on strike action.

However, as regards the refusal to register a second trade union in an enterprise, the Committee regrets to note the Government's observation that where a trade union exists in an enterprise, another union of the same kind may not be registered, since this would contribute to weakening the trade union movement.

In this connection the Committee reminds the Government that under Article 2 of the Convention workers have the right to form and join trade unions of their own choosing, and draws its attention to the principle that it is not the purpose of the Convention to make trade union diversity an obligation, but to make this diversity possible in all cases. There is a fundamental difference between on the one hand a trade union monopoly established or maintained by law, and on the other hand, voluntary groupings of workers or unions which occur (without pressure from the public authorities, or due to the law) because they wish, for instance, to strengthen their bargaining position, coordinate their efforts to tackle ad hoc difficulties which affect all their organizations, etc. Trade union unity imposed by law runs counter to the standards expressly laid in the Convention (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 91). The Committee asks the Government to take appropriate steps to ensure that sections 357, 365(g) and 366(4)(c) are amended to take account of these comments.

The Committee again expresses the hope that the Standing Tripartite Committee provided for in the National Constitution will be set up in the near future, and asks the Government to ensure that the amendments made to labour legislation by the above Committee takes account of all the comments that the Committee of Experts has been making for many years. The Committee asks the Government to report on any positive developments in this area.