Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

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

The Committee notes the Government's report and the information supplied by a government representative and the ensuing debates in the Conference Committee in 1997.

The Committee recalls that in its previous observation it noted that the Government had prepared a Bill with the assistance of the ILO mission on freedom of association which visited the country in October 1996, envisaging the repeal or amendment of various provisions of the Substantive Labour Code criticized by the Committee for several years, and that a government representative had informed the Conference Committee in 1997 that the Bill had been submitted to the Congress of the Republic in November 1996. 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;

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

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

-- 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;

-- 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;

-- section 486 on the supervision of the internal management of trade unions and meetings of unions by public servants;

-- 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;

-- 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;

-- sections 388(f) and 422(f), which provide that a person must not have been condemned to a serious penalty, unless he or she has been rehabilitated, nor sued for ordinary offences at the time of election;

-- 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 (...)";

-- 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"; and

-- section 488(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, once a strike is called, submit to a ballot by all the workers in the enterprise whether they wish to submit the remaining dispute to arbitration".

In this respect, the Committee notes that the Government has indicated that the Congress of the Republic decided to shelve the above-mentioned Bill and that, in these circumstances, the Ministry of Labour is studying the possibility of submitting to Congress the Labour Statutes referred to in article 53 of the Constitution and to include in it the amendments embodied in the shelved Bill. The Committee therefore stresses the need to amend or repeal with the utmost dispatch the above-mentioned provisions of the Substantive Labour Code in order to bring the legislation into compliance with the Convention. The Committee requests the Government to inform it in its next report on any measures adopted regarding this matter.

Furthermore, the Committee recalls that for a number of years it has been criticizing the legislative provisions concerning:

-- the prohibition of strikes, not only in essential services in the strict terms 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 over a specific period (section 448)(4) of the Code); and

-- the possibility of dismissing trade union officer 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 foregoing subparagraphs.

In this respect, in its previous observation the Committee noted that the Government had prepared 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 which would be in greater conformity with the requirements of the Convention and the principles of freedom of association.

While observing that the Government has not mentioned in its report whether the preliminary draft Bill in question has been finally drafted with the aim of presenting it to the Congress of the Republic, the Committee requests the Government to inform it on this matter in its next report.