Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

The Committee notes the Government's report. It also notes the comments submitted by the Textile Industry Workers' Trade Union of Colombia (SINTRATEXTIL) regarding the Textiles Río Negro company's non-compliance with the obligation to retain trade union subscriptions and requests the Government to send its comments on the matter.

The Committee notes the Government's indication that on 18 March 1999 the Ministry of Labour and Social Security submitted to the Congress of the Republic a Bill (which was adopted on first reading in the Senate on 9 June 1999 and to which the Single Confederation of Workers of Colombia submitted amendments) which derogates or amends the following provisions commented on by the Committee for many years:

-- section 365(g) of the Labour Code on the requirement, in order for a trade union to be registered, that the labour inspector must certify that there is no other union (repealed);

-- section 380(3) which provides that "any member of a trade union executive who has been responsible for the dissolution of a union as a sanction may be denied the right of trade union association in any form for up to three years (...)" (repealed);

-- section 384 on the requirement that, in order to form a union, two-thirds of its members must be Colombian (repealed);

-- section 388(1)(a) on the need to be of Colombian nationality to hold executive office in a trade union;

-- section 388(1)(c) on the requirement to have normally exercised the activity, trade or position covered by the trade union in order to be a trade union official;

-- section 388(1)(f) which provides that a person must not have been given a serious sentence unless he or she has been rehabilitated, nor sued for ordinary offences at the time of election (amended to allow the trade union to set out in its statutes the requirements, in addition to membership of the union, for holding executive office in a trade union);

-- section 422(1)(c) on the need to have exercised the activity, occupation or position covered by the trade union in order to hold office in a federation or confederation;

-- section 422(1)(f) which provides that a person must not have been given a serious sentence, unless he or she has been rehabilitated, nor sued for ordinary offences at the time of election (amended to allow the trade union to set out in its statutes the requirements, in addition to active membership of the trade union, federation, or confederation, for holding executive office in a federation or confederation);

-- section 432(2) on the need to be of Colombian nationality in order to be a member of a delegation submitting to an employer the list of claims that are being made (amended to exclude the requirement to be of Colombian nationality);

-- section 444, last subsection, on the presence of the authorities at general assemblies convened to vote on referral to arbitration or on the calling of a strike (amended to allow the trade union the choice of having the labour authorities present or not); and

-- section 448(3) which provides that "when a strike is called, the Minister of Labour and Social Security, ex officio or at the request of the trade union or trade unions representing the majority of workers at the enterprise, or if not, of the workers gathered at a general meeting, may, once a strike is called, submit to a ballot by all workers in the enterprise whether they wish to submit the remaining dispute to arbitration" (amended so that the Minister of Labour and Social Security is no longer able automatically to submit to a ballot by the workers of the enterprise the submission to a court of arbitration).

Nevertheless, the Committee notes that section 9 of the Bill in question provides for amendment of section 486 on the control of internal management of trade unions and union meetings by officials, permitting that when there is a request from an interested party, the officials of the Ministry of Labour can call before them trade union leaders or members to require them to provide relevant information on their work, and to present books, registers, plans and other documents and obtain copies of or extracts from the latter. The Committee considers that the amendment is not in conformity with the provisions of the Convention since control by the administrative authority should be possible only when there exist reasonable grounds that an offence has been committed in order to carry out an investigation as a result of a representation or if there have been allegations of misappropriation or when requested by a certain percentage of members, with the Ministry of Labour always retaining the power to request information annually on the financial state of the trade unions. The Committee considers that the text of section 486 should be amended as indicated.

Furthermore, the Committee notes that the Bill mentioned does not refer to other legislative provisions relating to the exercise of the right to strike which have also been the subject of comments for many years:

-- section 417(1), which provides that "federations and confederations have the right to recognition of a legal personality and have the same functions as trade unions, except for the calling of a strike, which lies solely within the competence, when so authorized by the law, of the respective trade unions or groups of workers directly or indirectly concerned";

-- 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 more than a specific period (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), including when the strike is unlawful due to failure to comply with excessive requirements such as those mentioned in the aforegoing subparagraphs.

The Committee also notes in relation to the exercise of the right to strike the conclusions of the Committee on Freedom of Association in Case No. 1916, approved by the Governing Body at its March 1999 session, relating to the dismissal of trade union leaders, members and workers for taking part in a strike which was declared illegal in application of the legislative provisions which allow the Ministry of Labour to declare a strike illegal. On this matter the Committee recalls that a declaration of illegality of a strike should be made by the judicial authority or an independent authority, not by the Ministry of Labour.

The Committee requests the Government to take measures to repeal or amend the provisions mentioned and to inform it in its next report on any measure adopted on the matter.