Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments made by the Single Confederation of Workers of Colombia (CUT), dated 28 August 2009 and the International Trade Union Confederation (ITUC) of 26 August 2009. These comments relate to matters that are already under examination by the Committee, and particularly acts of violence against trade union leaders and members, including murders and other acts of violence, and the impunity relating to many acts of violence (most acts of violence have been referred to the Committee on Freedom of Association). The Committee also notes the comments made by the National Association of Telephone, Communication and Allied Technicians (ATELCA) related to a case examined by the Committee on Freedom of Association. The Committee further notes the comments of the National Association of Employers of Colombia (ANDI). The Committee notes various communications from the Government related to these comments, and its reply to the comments made previously by the Union of Maritime and Inland Water Transport Workers (UNIMAR).

The Committee notes the discussions in the Conference Committee on the Application of Standards in 2009 on the application of the Convention, and particularly the commitment expressed by the Government and the social partners to reinforce social dialogue in the country. The Committee also notes that the Conference Committee invited the Government to continue receiving ILO assistance in relation to all the pending matters.

In this respect, the Committee notes with interest that, pursuant to the conclusions of Conference Committee on the Application of Standards, the Government of Colombia invited the Standards Department of the ILO to undertake a mission to the country with a view to observing the action taken as a result of the conclusions. The mission was undertaken from 19 to 23 October 2009 and interviewed the representatives of the Government and the social partners, as well as the representatives of the principal institutions in the country.

Finally, the Committee also notes the cases examined by the Committee on Freedom of Association (CFA) concerning Colombia. In this respect, the Committee notes with interest that the Government delivered a communication to the mission indicating that: (1) the Special Committee for the Handling of Conflicts  referred to the ILO (CETCOIT) constitutes a special and particularly valuable forum for creating trust between the social partners; (2) it supports the reinforcement of the procedure and, to this end, will allocate the necessary resources so that it is supported for one year by a university ensuring the process of facilitating the resolution of the cases before the CETCOIT; and (3) it will examine the possibility of having recourse to the procedure of a preliminary contacts mission, envisaged in the rules of procedure of the CFA, as it holds the conviction that implementing all mechanisms can improve industrial relations in the country. The Committee requests the Government to provide information in its next report on any progress made in the work of the CETCOIT.

Trade union rights and civil and political liberties

The Committee recalls that for many years it has been examining allegations of violence against trade unionists and the situation of impunity, at which it has expressed its concern. The Committee notes that the comments made by the CUT and the ITUC refer to a significant number of acts of violence against trade unionists. In the latest information provided by the CUT to the mission which visited Colombia, it reported that the acts of violence against the trade union movement in 2009 included the murder of 26 unionized workers, and that 38 convictions were handed down in 2009 against those responsible for acts of violence against trade unionists. The CUT further indicated that the trade union movement has provided to the Office of the Attorney-General a list of 2,688 murder victims during the period between January 1986 and 15 March 2009 (which was also submitted to the Committee on Freedom of Association in the context of Case No. 1787), but indicates that the list has not been taken into account by the Office of the Attorney-General. Moreover, during their interviews with the mission in October 2009, certain representatives of the trade union movement expressed concern at the possibility that the programme of protection for trade unionists would be ended at the end of 2009.

In this respect, the Committee notes the Government’s indication that, according to its statistics, 23 trade unionists were murdered in 2009 and that 49 convictions were obtained against those responsible for acts of violence against the trade union movement, while protection measures were provided for 1,450 trade unionists and over US$13 million was provided for protection measures. The Government informed the mission that, with regard to the 23 trade unionists murdered in 2009, the investigations carried out by the Office of the Attorney-General found that 15 were not for trade union reasons and, up to now, of the other eight only one was murdered because of their trade union activities. The Government adds that the number of violent deaths in the country has decreased, that its objective is for there to be no murders of trade unionists and that instructions have been given at the highest level of the Government to protect the trade union movement.

With reference to all of these matters, the Committee expresses appreciation of the tangible commitments given by the Government in a communication that it delivered to the mission which visited the country in October 2009. The communication stated that “for the State of Colombia, it is of crucial importance to elucidate violent acts committed against trade union leaders and unionized workers. In this respect, the Government undertakes to allocate the necessary financial resources for the strengthening of the Trade Union Members Sub-Unit of the National Human Rights Unit of the Office of the Attorney-General of the Nation and the Specialized Magistrates of the Higher Council of the Judiciary, so that they can complete the investigation of the acts of violence alleged in the context of Case No. 1787”. The communication also indicates that “the Government, with the assistance of the ILO, will enter into dialogue with the workers’ federations on the criteria to harmonize information on acts of violence against the trade union movement, for transmission to the investigatory bodies, and in this manner support the investigations”. With regard to the protection of trade unionists, the Government’s communication notes that “in relation to the preventive measures to avoid new acts of violence against trade union leaders and workers, the Government undertakes to continue the protection programme and to continue allocating resources to its financing and affirms that, irrespective of the body implementing protection measures, responsibility for the programme will always rest with the State.” The Committee also notes the statement by the Office of the Attorney-General to the mission that it is prepared, with the additional funding made available to it by the Government, to conduct investigations into all the allegations contained in Case No. 1787 that is under examination by the Committee on Freedom of Association (concerning over 2,600 murders since 1986, to which the CUT refers in its comments).

The Committee further notes with satisfaction the adoption of Act No. 1309 of 2009, concerning the examination of which the Government had provided information to the Conference Committee on the Application of Standards, and which: (1) provides that the time limit for the prescription of acts punishable as murder of a member of a legally recognized trade union organization shall be 30 years; (2) considers as an aggravating circumstance for the imposition of penalties crimes against members of a trade union organization or human rights ombudsperson; (3) provides that any person who prevents or disturbs a lawful assembly or the exercise of rights granted by labour laws or engages in reprisals on grounds of strike action, assembly or legitimate association, shall be liable to a fine of between 100 and 300 minimum monthly wages as established by law; and (4) provides that, in the event of threats or intimidation against a member of a trade union organization, the penalty shall be increased by one third. The Committee also notes with interest that the authorities of the Ministry of the Interior and Justice confirmed to the mission that the Victims Compensation Fund established by Act No. 975 on Justice and Peace, applies to cases related to trade union leaders and members and its coverage currently amounts to 177 trade union leaders.

The Committee once again expresses deep regret at the murders and acts of violence against trade unionists which have been occurring for many years and those that have occurred in 2009, since the previous examination of the application of the Convention. Taking into account the gravity of the situation, the Committee recognizes all the measures, of a practical and legislative nature, that the Government has been adopting recently to combat violence in general and violence against the trade union movement, and it notes a decrease in the murders of trade unionists between 2008 and 2009, and in violence in general. The Committee hopes that the new measures will make it possible to combat violence against trade unionists effectively and will lead to the conviction of those responsible. The Committee requests the Government to indicate in its next report on any developments in this respect.

Pending legislative and practical matters

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. The Committee referred previously to the use of associated work cooperatives as a contractual mechanism which, according to the allegations of trade union organizations, can cover actual employment relationships and are used for the performance of functions and work that are within the normal activities of the establishment and under which workers may not establish or join trade unions. The Committee noted in its previous observation the approval by the Congress of the Republic, on 22 July 2008, of Act No. 1233 respecting associated work cooperatives, following lengthy consultations with the representative organizations of associated work cooperatives, workers’ federations, branch organizations representing employers and academic circles. On that occasion, the Committee noted that the Act refers to the “workers” of cooperatives and in that context recalled that under the terms of Article 2 of the Convention, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing. The Committee notes the Government’s indication in its report, and the indication provided to the mission, that the new Act prohibits the use of cooperatives as a mechanism for labour mediation and grants the administrative authority the means to penalize such conduct. The representatives of the ANDI indicated to the mission that nothing currently prevents workers in cooperatives from establishing and registering trade unions, as unions exist in this sector. It referred in this respect to the SINTRACORTEROS trade union. The representatives of the workers indicated to the mission that there is a proliferation of cooperatives and that the workers in such cooperatives are not allowed to exercise the right to organize or to engage in collective bargaining. In this respect, taking into account the contradictory indications provided, the Committee requests the Government to consider the possibility of an independent expert undertaking a national study on the application of the Act respecting cooperatives and their use in the area of industrial relations, and also to clarify the issue of whether or not workers in cooperatives can organize. The Committee requests the Government to provide information on this matter in its next report.

Right to establish organizations without previous authorization. In its previous comments, the Committee referred to the arbitrary refusal by the authorities 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 explicit provisions of the legislation. In this respect, the Committee requested the Government to repeal the provision of Resolution No. 626 of February 2008 which establishes, among the causes for which the competent official may refuse an entry in the trade union register, “that the trade union organization has been established for purposes that are different from those deriving from the fundamental right of association”. In this respect, the Committee notes with interest ruling No. 695 of 2008 of the Constitutional Court, which provides that “the expression ‘its legal recognition [of the union] shall be the result of the mere registration of the founding statutes’, contained in article 39 of the Constitution, this statement shall be interpreted in conformity with the principle of publicity, in the meaning that such recognition does not consist of the granting of legal personality to the union, nor an act declaring its legal existence by the State, but that the founding statutes may be asserted or produce legal effects in respect of the State, as a third party, with the inclusion of all its bodies, in relation to the participants of the expression of the collective will to found the union, namely those who founded the union, and in respect of all third parties, and primarily the employer, on the basis of the above registration. Based on the above statement and taking into account that section 372, first indent, of the Substantive Labour Code (as replaced by section 50 of Act No. 50 of 1990, and explicitly amended by section 6 of Act No. 584 of 2000), may be interpreted in the sense that the registration of the founding statutes of the union with the Ministry of Social Protection is a requirement for the existence and lawful status of the union. This interpretation of section 372 would be contrary to the provisions of article 39 of the Political Constitution, and Article 2 of Convention No. 87 of the ILO, which forms part of the constitutional provisions, such that the incorporation shall be declared enforceable as conditioned by such expression, in relation to the functions examined in this ruling, on the understanding that such registration shall exclusively fulfil functions of publicity, without authorizing the Ministry referred to above to carry out prior controls of the content of the founding statute.”

The Committee also notes the Government’s indication that, in accordance with this ruling, Resolution No. 626 of 2008 is not applicable and that, as a consequence, the Ministry of Social Protection has been depositing, immediately upon presentation in person, documents setting out the decision to establish trade union organizations, new executive committees and amendments to their statutes, without the application of a procedure and without prior control.

Article 3. Right of workers’ organizations to organize their activities and to formulate their programmes. The Committee recalls that for a number of years it has been referring to 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 that are not necessarily essential (section 430(b), (d), (f), (g) and (h); section 450(1)(a) of the Labour Code, Tax Act No. 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 the possibility to dismiss workers 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 freedom of association. In this respect, the Committee notes the ruling of the Labour Cassation Chamber of the Supreme Court of Justice, of 3 June 2009 (No. 40428), indicating that the Constitutional Court in each individual case referred to it will examine whether or not a particular activity, taking into account its material content, corresponds to an essential service. The Supreme Court finds that “in accordance with constitutional doctrine, even where there may exist a legislative definition of the classification of a public service as essential, this does not prevent it being determined through interpretation that in a specific case a certain activity may effectively be considered an essential public service in view of its material content”. The ruling continues by indicating that “this must be the case, as article 56 of the Constitution cannot lay down for the legislator an absolute classification such that the terms of the higher level or supra-legal text is sufficient in itself for the determination of a matter, without the interpreter examining its spirit or its objective, in the light of the constitutional principles”. The Committee observes that it was found in the context of this ruling that “it may not be affirmed that the rail transport of freight may be considered an essential public service”.

The Committee also notes the Government’s indication to the mission in a written communication setting out its readiness to examine in a tripartite forum in the context of the National Dialogue Commission on Wage and Labour Policies the legislative discrepancies that are still pending before the ILO supervisory bodies. In this respect, the Committee observes that, in accordance with Act No. 1210 (amending section 451 of the Substantive Labour Code) “the legality or unlawful nature of a collective labour suspension or stoppage shall be the subject of a judicial ruling in a priority procedure, and that in accordance with the above holding, it rests with the judicial authorities to determine when a service is essential”. Under these conditions, the Committee hopes that the highest judicial authority will take into account the principles of the supervisory bodies in relation to essential services, in which the right to strike may be prohibited or restricted, and it requests the Government to provide information in its next report on any development in the case law on this matter and whether it is envisaged that the legal provisions referred to above will be repealed or amended.

Declaring a strike illegal. In its previous observation, the Committee noted the adoption of Act No. 1210 of 2008, amending section 451 of the Substantive Labour Code to read as follows: “the legality or unlawful nature of a collective work suspension or stoppage shall be declared by the judicial authorities in a priority procedure”. The Committee takes due note of the fact that, following the adoption of this Act, the Constitutional Court handed down ruling
No. C-349/09 declaring unconstitutional section 1(2) of Act No. 1210, which empowered the President of the Republic, with a prior favourable opinion issued by the Labour Chamber of the Supreme Court of Justice, to order the cessation of a strike at any time and the referral of the disputes which gave rise to it to compulsory arbitration where the strike, in view of its nature, is seriously prejudicial to the health, safety, public order or the economy of the whole or part of the population.

Compulsory arbitration. In its previous observation, the Committee noted that Act No. 1210 amends section 448(4) of the Substantive Labour Code and provides that: (1) the employer and the workers may, within the following three days of a labour dispute, convene any settlement, conciliation or arbitration machinery; (2) if they do not reach agreement, automatically or at the request of the parties, the Commission for Dialogue on Wage and Labour Policies shall intervene and use its good offices for a maximum of five days; (3) once this period has elapsed without it being possible to achieve a definitive solution, both parties shall request the Ministry of Social Protection to convene an Arbitration Board; and (4) the workers shall be under the obligation to return to work within three days. In this respect, the Committee takes due note of the fact that a Government representative at the Conference Committee on the Application of Standards confirmed that the request to refer disputes to an Arbitration Board must be made by both parties. The Committee observes that this was also confirmed to the mission which visited the country in October 2009.

Article 6. Restrictions imposed on the activities of federations and confederations. The Committee has been referring for several years to the prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code). The Committee recalled that higher level organizations should be able to resort to strikes in the event of disagreement with the Government’s economic and social policy and requested the Government to amend the above provision. The Committee notes the indication by the Government in a written communication that it is prepared to analyse, in a tripartite forum in the context of the National Dialogue Commission on Wage and Labour Policies, the pending legislative discrepancies that are before the ILO supervisory bodies. The Committee also observes that, under the terms of Act No. 1210, a strike called by a federation or confederation may only be declared illegal by the judicial authorities. The Committee requests the Government to provide information in its next report on any developments in this respect.