Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Colombia (Ratification: 1976)

The Committee notes the Government's report, which only covers the period from July 1988 to June 1989.

The Committee considered that the sanctions laid down for acts of anti-union persecution (fines of from one to 40 times the miminum monthly wage) should be further increased in order to be sufficiently dissuasive. In this context, the Committee notes with satisfaction that section 39 of Act No. 50, of 28 December 1990, has amended section 354 of the Labour Code so as to increase the amount of the sanctions that are applicable in the event of acts that interfere with the right of association. These sanctions now provide for a fine equivalent to from five to 100 times the highest minimum monthly wage, without prejudicing the penal sanctions that are applicable by virtue of section 292 of the Penal Code (imprisonment of from one to five years) for violations of the rights of assembly and association.

The Committee also shared the conclusion of the Committee on Freedom of Association at its meeting in November 1988, when examining Case No. 1465 (see the 259th Report, paragraphs 675 to 678) in which, with reference to the distinction between "public servants" (who may be freely appointed and dismissed and are not entitled to enter into collective agreements) and "official employees" in commercial and industrial state enterprises, it emphasised that within the framework of Conventions Nos. 87 and 98, the legal status of "public servants" in the Colombian legislation is not satisfactory, since workers in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, and should enjoy suitable protection against acts of anti-union discrimination.

In this connection, the Committee notes that section 57 of Act No. 50 amends section 406 of the Labour Code so as to permit official employees to "establish mixed organisations of official employees and public employees, which, in their activities, shall take into account the limitations set out by law regarding the legal status of their members in respect of the administration". The Committee requests the Government to indicate whether, on the basis of this provision, workers who are members of organisations of public employees and of mixed organisations (of public employees and official employees) enjoy the protection set out in the Labour Code, or in other regulations issued thereunder against acts of anti-union discrimination.

With regard to the right to collective bargaining of organisations of public employees, the Committee points out that the Convention deals with the position of all workers, with the only possible exception being public servants, who are engaged "in the administration of the State". It requests the Government to take measures to amend the legislation (sections 414 and 416 of the Labour Code) in order to grant those "public employees" who are not engaged in the administration of the State, the guarantees set out in the Convention in respect of the negotiation of collective agreements. The Committee requests the Government to report any development in this respect.