Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes the Government’s report and its reply to the comments made by the Single Confederation of Workers (CUT), the General Confederation of Democratic Workers (CGTD) and the Confederation of Workers of Colombia (CTC) in their communication of 1 June 2004 and by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 23 July 2004. The Committee also notes the report of the high-level tripartite visit undertaken in the country in accordance with a decision of the Committee on the Application of Standards in the context of the examination of the application of Convention No. 87 following an invitation by the Government of Colombia to the Chairperson of the Committee on Freedom of Association and the Employer and Worker Vice-Chairpersons of the Committee on the Application of Standards.

The Committee also notes the new comments submitted by the CUT, the CGT and the CTC in communications dated 7 and 14 June and 7 September 2005. The Committee further notes the comments made by the CTC in a communication dated 31 August 2005. The ICFTU also made comments in a communication on 31 August 2005. The CMT and the ICFTU made joint comments in a communication dated 7 September 2005. Finally, SINTRAELECOL made comments in a communication dated 20 September 2005. The Committee notes that the comments relate to matters raised previously by the Committee concerning the absence of collective bargaining in the public administration, recourse to collective accords with non-unionized workers in parallel to collective agreements and the lack of consultation of trade union organizations in restructuring processes.

1. Collective bargaining in the public sector. The Committee recalls that for many years it has been referring to the need to give effective recognition to the right to collective bargaining of public employees who are not engaged in the administration of the State. The Committee notes the Government’s reiterated statement that, in accordance with the case law of the Constitutional Court, organizations of public employees are prohibited from submitting claims relating to their conditions of employment or to conclude collective agreements, as their employment conditions are governed by the law. According to the Constitutional Court, this means that the establishment of machinery to enable public employees or their representatives to participate in the determination of their terms and conditions of employment is valid, on condition that it is understood that in the final resort the decision is taken by the authorities referred to in the Constitution. The Committee nevertheless emphasizes that, under the terms of Convention No. 98, public employees who are not engaged in activities involving the administration of the State should enjoy the right to collective bargaining. In this respect, the Committee regrets that the Government has not yet taken legislative measures to ensure the right to collective bargaining of public employees. The Committee requests the Government to provide information in its next report on any measures adopted in this respect and hopes that it will be able to note tangible progress in the near future.

2. Collective accords with non-unionized workers. With regard to the signature of collective accords to the prejudice of collective agreements, the Committee notes the Government’s indication that collective accords are provided for in the legislation and its emphasis on the equality of collective accords and collective agreements. The Committee notes that, under sections 481 et seq. of the Substantive Labour Code, collective accords can only be concluded in cases in which the membership of the trade union organization does not include over one-third of the workers. The Committee observes that, according to the information gathered by the high-level tripartite visit, it is frequently the case in practice that workers who are members of a trade union organization are encouraged to disaffiliate from it and to sign a collective accord (the members of a trade union cannot sign collective accords), thereby bringing the number of members below the level of one-third of the workers in the enterprise. The Committee recalls once again Article 4 of the Convention, respecting the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, and emphasizes that direct negotiations with workers should only be possible in the absence of trade union organizations. In this respect, the Committee requests the Government to take measures to guarantee that collective accords are not used to undermine the position of trade union organizations and the possibility in practice to conclude collective agreements with them, and to provide information on the total number of collective agreements and collective accords and the respective number of workers covered by them.

3. Consultations concerning restructuring processes. With regard to the lack of consultation with workers’ organizations concerning restructuring processes, the Committee notes that, according to the information provided by the Government, the most recent restructuring processes have been undertaken following consultations with trade union organizations. The Committee emphasizes the convenience of governments engaging in meaningful consultations with trade union organizations with a view to discussing the impact of restructuring programmes on the employment and working conditions of employees.

Finally, the Committee notes the Government’s indication that the Standing Advisory Committee on Wage Policies met on 1 September 2005, that it is planned to continue holding regular meetings and that, in view of the importance of Convention No. 98, the participants in the Standing Committee have been invited to establish a joint agenda to discuss matters relating to the Convention.