Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Colombia (Ratification: 1976)

The Committee notes the Government's report. The Committee notes the report of the freedom of association mission undertaken from 7 to 11 October 1996 in Colombia, as requested by the Government in the Conference Committee in June 1996.

The Committee recalls that its previous comments concerned:

- 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 Substantive Labour 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 power of the Minister of Labour to submit ex officio to a ballot by all the workers in the enterprise as to whether they wish to submit persistent differences to arbitration (once a strike has been called) (section 448(3) 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); and

- 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 that the Government refers in its report to the mission on freedom of association which visited the country in October 1996. Furthermore, the Committee notes with interest the Government's statement in its report that it has prepared a Bill envisaging the repeal or amendment of various provisions of the Substantive Labour Code criticized by the Committee, and that the authorities of the Ministry of Labour have undertaken to submit this Bill to the Congress of the Republic during the current legislative period. In practice, the Bill repeals or amends the following provisions: section 365(g) 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 384 on the requirement that, in order to form a union, two-thirds of its members must be Colombian (repealed); section 388(1)(c) on the need to be of Colombian nationality to hold executive office in a trade union (repealed); section 388(c) on the requirement to have normally exercised the activity, trade or position characteristic of the trade union in order to be a trade union officer (repealed); 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 (the requirement to be of Colombian nationality is eliminated); section 486 on the supervision of the internal management of trade unions and meetings of unions by public servants (all reference to the trade union organization or its members is deleted); 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 (under the Bill, this will only be possible when the trade union organization concerned requests such presence); section 422(1)(c) on the need to have exercised the activity, occupation or position characteristic of the trade union in order to hold office in a federation or confederation (repealed); sections 388(f) and 422(f), which provide 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 (amended; the new wording is "not have been found guilty or put on trial for offences prejudicial to the discharge of trade union activities"); section 380(3), which provides that "any member of a trade union executive who has been responsible for the dissolution of the union as a sanction may be denied the right of trade union association in any form for up to three years (...)" (repealed); section 417(1), which provides that "federations and confederations have the right to the recognition of their legal personality and have the same functions as trade unions, except for the calling of a strike, which is the sole competence, when so authorized by the law, of the respective trade unions or groups of workers directly or indirectly concerned" (the prohibition on federations and confederations from calling a strike is deleted); 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 in a general assembly, may submit to a ballot by all the workers in the enterprise whether they wish to submit persistent differences to arbitration (...) (the words "ex officio" are deleted).

The Committee also notes that the Government transmitted to the mission a preliminary draft of a Bill defining the concept of essential public services, regulating the exercise of the right to strike in such services and containing other provisions for the peaceful settlement of collective labour disputes. Furthermore, the Committee notes that the Office made the comments requested by the Government on the above preliminary draft and that its provisions would be in greater conformity with the requirements of the Convention and the principles of freedom of association. In this context, the Committee notes the Government's statement in its report that the officials of the Ministry of Labour and the President's Office are examining the comments made by the ILO with a view to adapting the preliminary draft text to the principles of freedom of association.

In these conditions, the Committee expresses the firm hope that the above Bill and preliminary draft text will be submitted to the Congress of the Republic as soon as possible and that the corresponding Acts will be adopted in order to bring the legislation into conformity with the Convention and the principles of freedom of association. The Committee requests the Government to transmit the text of the above Acts as soon as they are adopted.

Furthermore, the Committee is addressing a request directly to the Government.

[The Government is asked to provide a detailed report in 1997.]