Rapport définitif - Rapport No. 143, 1974

1. 45. The complaint of the Trade Union Confederation of workers of Colombia is contained in a communication dated 15 December 1972 and further information was supplied by the complainants in a letter dated 8 February 1973. These communications were transmitted to the Government, which forwarded its reply in a communication dated 31 October 1973.
2. 46. Colombia has not ratified either the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the Granting of Legal Personality
  47. 47 The complainants contend that there are long delays in granting legal personality to new trade union organisations, and that these delays are in reality an attempt to destroy freedom of association in Colombia. Workers founding a workers' organisation are protected by law from dismissal or other discriminatory acts on the part of their employers for six months but thereafter they cease to be so protected. By delaying recognition of the legal personality of the trade union organisation beyond the six-month time period, the Ministry allegedly enables the employer to dismiss quite legally all of the persons involved. This is said to have been the case, for example, in the Cremalleras y Mallas Factory, where thirty workers involved in the founding of a union were dismissed after having waited six months for the acquisition of legal personality for their union.
  48. 48 The complainants allege, in particular, that the National Federation of Metal Workers (FENTRAMETAL) was constituted in October 1969 by sixteen metal workers' unions, all of which had been recognised by the authorities. The Federation sought legal personality but after a delay of ten months, the Ministry of Labour and Social Security requested supplementary information and then refused to grant legal personality. The Federation reconstituted itself on 10 and 11 October 1971 and again filed the appropriate documents with the Ministry of Labour, on 19 October of that year, in order to be recognised. Since that date the Ministry has not pronounced one way or the other, on this second application, although the complainants point out that sections 366 and 423 of the Labour Code provide that such applications must be allowed or dismissed within fifteen days of presentation to the ministry.
  49. 49 The Government replies that there is usually no delay in the processing of applications for legal personality - 144 were admitted in 1973. There are a few cases, it states, in which the time limits provided for by law have been exceeded but this results from mistakes in the applications, which consequently have to be returned to the unions concerned in order to be rectified. The Government agrees that situations like that in the Cremalleras y Mallas Factory do arise, but it states that they can be dealt with under the regular labour law in force in the country.
  50. 50 As regards the application for recognition of FENTRAMETAL, the Government replies that the original application for legal personality was rejected on the grounds that certain provisions of the Labour Code had not been complied with. The Government appends to its communication a copy of the decision of the Ministry of Labour and Social Security in the matter. From the latter it appears that legal personality was refused far the following reasons:
      • (a) the directors and certain central Committee members neglected to forward certificates from their employers as required by subsection (c) of section 422 of the Labour Code (establishing that the person is employed in the trade or undertaking in which the union will be active);
      • (b) there was a breach of section 8 of Decree No. 2655 of 1954, in that the Union of Workers in the Metallurgical Industry of Antioquia should have nominated three delegates to the Constitutional conference of the Confederation and it appeared that it had nominated only two. Similarly the Onion of Workers in the Aluminium Industry of Atlántico only elected three delegates, whereas they should have elected four;
      • (c) pursuant to section 9 of the same Decree, delegates at the Constitutive Assembly of the National Federation of Metal workers must have a certificate issued by their respective unions certifying their membership in good standing of the union. The delegates at the Constitutive Assembly of the National Federation of Metal Workers did not comply with this requirement;
      • (d) in the incorporation documents neither the addresses of the constituent unions nor the identity papers of the members of the Provisional Executive appear;
      • (e) the documents show that the last central Committee of the Central Union of Metallurgical and Allied Workers, one of the founding unions in the proposed federation, was approved on 6 November 1968. In fact official approval was given on 5 November 1968;
      • (f) the documents state that the central Committee of the Union of Workers in the Metallurgical Industry, also one of the constituent unions, was approved on 27 May 1969, but in fact the correct date was 20 May 1969;
      • (g) as regards the union of Workers in the Aluminium Industry of Atlántico, another founding member of the federation, it is stated that it was incorporated in the Official Gazette, No. 22527, of December 1957. This number of the Gazette was, however, published in November 1957;
      • (h) finally, there seemed to be some confusion concerning the name of the new federation: in the memorandum submitted to the Department of Labour and Social Security of Cundinamarca the federation is designated as "Federation of Workers in the Metallurgical Industry", whereas in the incorporation documents it is called the "National Federation of Metal Workers (FENTRAMETAL)".
  51. 51 This case involves the principle that workers' organisations have the right to establish and join federations and Confederations of their own choosing, and the principle that the acquisition of legal personality by workers' organisations, federations and Confederations should not be made subject to conditions of such a character as to restrict this right. In this respect, the Committee again recalls that it took the view in one of its first cases that the formalities prescribed by national regulations concerning the Constitution and functioning of workers' organisations were compatible with the provisions of Convention No. 87, provided that the provisions in such regulations did not infringe the guarantees laid down in the Convention.
  52. 52 It would appear that the decision of the Ministry to refuse to grant legal personality to the federation is based on the fact that certain formalities were not complied with. The Committee notes, however, that several of these "breaches" are of a very minor nature, particularly as regards mistaken references to dates of incorporation, and could surely have been rectified quickly.
  53. 53 As to the objection that certain trade union leaders or officers neglected to forward certificates from their employers to the effect that they were employed in the trade concerned, the Committee recalls that it has already taken the position that the provisions of section 422 of the Labour Code, which require that trade union leaders should, at the time of their election, have been engaged in the occupation or trade concerned for more than a year, are not in harmony with Article 3 of the Convention, which recognises the right of workers' organisations to elect their representatives in full freedom.
  54. 54 The Committee notes that the second application of FENTRAMETAL for granting of legal personality has been pending now for over two years.
  55. 55 On this question generally the Committee recalls that the principle of freedom of association might very well often remain a dead letter if employers and workers were required to obtain any previous authorisation to enable them to establish an organisation, be it authorisation concerning the formation of the trade union organisation itself, or, again, authorisation for taking steps prior to establishment of the organisation. This does not mean that the founders of an organisation are freed from the duty of observing formalities as to publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to be equivalent in practice to previous authorisation, or as to constitute such an obstacle to the establishment of an organisation that they amount in practice to outright prohibition.
  56. 56 The Committee therefore recommends the Governing Body to call the attention of the Government to the principles and considerations expressed in the above paragraphs and to express the hope that the Government will take a final decision on the second application of the National Federation of Metal Workers for legal personality as soon as possible.
• Allegations concerning Freedom of Assembly
  57. 57 The complainants allege that the state of siege which has prevailed in Colombia for more than twenty years virtually without interruption has had the effect of severely limiting trade union activities. Legislative Decree 672 of 22 March 1956 provides that five days' advance notice of trade union meetings has to be given to the Commanding Officer of the Brigade (of Military Institutes) and to the Labour Inspector. The authorities have allegedly treated this procedure not as one of notification but as one of application for permission. The Commanding officer often refuses to give his visa to the application with the result that the meeting is not authorised and, if held, is illegal.
  58. 58 The Government replies that Decree No. 276 of 3 March 1971 stipulates that the military and political authorities must decide whether trade union meetings can be held without disturbing the public peace.
  59. 59 The Committee recalls that the right of trade unions to hold meetings freely in their own premises, without the need for previous authorisation and without control by the public authorities, is a fundamental element in freedom of association. Public meetings and demonstrations also constitute an important trade union right, although it rests with the government, which is responsible for the maintenance of public order, to decide in the exercise of its corresponding powers whether meetings, including trade union meetings, may in certain special circumstances endanger public order and security and to take adequate preventive measures. However, permission to hold such meetings and demonstrations should not be arbitrarily refused.
  60. 60 The Committee recommends the Governing Body to draw the attention of the Government to the principles set out above and to express the hope that permission for trade union meetings will not be withheld arbitrarily by the competent authorities.
• Allegations relating to the Undermining of the Collective Bargaining Process
  61. 61 The complainants further allege that the rights of association and collective bargaining have virtually ceased to exist in Colombia because of a "doctrine" fostered by the Ministry of Labour and Social Security, according to which it is legal for employers to make proposals direct to workers with a view to establishing "accords" (pactos colectivos). These "accords" are allegedly forced on non-unionised workers by threats. Their terms may be entirely different from those of a collective agreement (convención colectiva) existing in respect of the unit. The complainants claim that the officers of the Ministry of Labour have stated that where there is an "accord", no collective agreement can be negotiated but where a collective agreement already exists, this is no bar to the negotiation of "accords". The bargaining position of the unions is thus seriously undermined.
  62. 62 The Government states that it is untrue to say that collective bargaining has ceased to exist in Colombia and points to some 554 collective agreements filed with the Ministry in 1973. It explains that the Ministry of Labour has not been engaged in creating "doctrines" as described by the complainants, rather the Supreme Court handed down a decision according to which employers may for the purposes of terminating a collective agreement present proposals for the conclusion of a new collective agreement. Further, the Government denies that the Ministry of Labour is pursuing a policy of encouraging "accords". The latter are permitted by the Labour Code and the ministry merely follows the law as it has been enacted.
  63. 63 The Committee wishes to recall that Convention No. 98 calls (in Article 4) upon governments to adopt measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment. The Collective Agreements Recommendation, 1951 (No. 91), Paragraph 2(1) defines a collective agreement as an agreement concluded between an employer, a group of employers or one or more employers' organisations and one or more representative workers' organisation or, "in the absence of such organisations, the representatives of the workers". The Committee has observed in the past that the above-mentioned international instruments stress the role of the workers' organisations as one of the parties in collective bargaining; Recommendation No. 91, in particular, refers to representatives of unorganised workers only when there is no organisation. In these circumstances the Committee has considered that direct negotiation between the undertaking and its employees, by-passing representative organisations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organisations of workers should be encouraged and promoted.
  64. 64 As for the possibility which employers might have according to the legislation of presenting proposals for the purposes of collective bargaining, the Committee considers that if these proposals are merely to serve as a basis for the voluntary negotiation to which Convention No. 98 refers, they could not be considered a violation of the principles applicable to this matter.
  65. 65 The Committee therefore recommends the Governing Body to draw the attention of the Government to the principles and considerations expressed above, particularly as regards the danger which the negotiation of "accords" (Pactos colectivos by-passing an existing workers' organisation may constitute for the normal development of collective bargaining in Colombia.