Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee notes the comments of the International Trade Union Confederation (ITUC), of 29 August 2008 and 26 August 2009; the Single Confederation of Workers of Colombia (CUT), the General Confederation of Workers (CGT) and the Confederation of Workers of Colombia (CTC), of 28 January and 13 June 2008; of the CGT of 19 August 2008; of the CUT and the CTC of 27 August 2008; and of the CUT of 28 August 2009. These organizations refer to matters that are under examination by the Committee, as well as to anti-union dismissals and the lack of adequate protection in this respect. The Committee also notes the comments made by the National Association of Telephone, Communication and Allied Technicians (ATELCA) of 16 August 2008 and 28 August 2009 referring to a case under examination by the Committee on Freedom of Association.

Finally, the Committee notes the comments of the National Association of Employers of Colombia (ANDI), of 1 September 2009, which refer to matters under examination by the Committee and mention the various committees and commissions operating in the country, of which it places emphasis on: the National Dialogue Commission on Wage and Labour Policies, the Inter-Institutional Human Rights Commission, the Special Committee for the Handling of Conflicts Referred to the ILO (CETCOIT) and the Negotiations Commission in the Public Sector. Furthermore, every five weeks a meeting is held between the President and Vice-President of the Republic, the Minister of Social Protection and workers’ organizations. The ANDI also refers to USAID assistance programmes and the bipartite Swedish technical cooperation programme, which are carrying out training programmes for dispute resolution, collective bargaining and social dialogue.

The Committee also notes the various communications from the Government relating to these comments, and its reply to the comments made previously by the Union of Maritime and Inland Water Transport Workers (UNIMAR).

Furthermore, the Committee notes with interest the invitation made by the Government to the Office for a mission to visit the country with a view to observing the effect given to the conclusions of the Conference Committee on the Application of Standards in relation to the examination of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which nevertheless addressed certain matters relating to Convention No. 98. The mission visited the country from 19 to 23 October 2009 and held interviews with representatives of the Government and of the social partners, as well as representatives of the principal institutions in the country.

The Committee also notes the cases examined by the Committee on Freedom of Association relating to Colombia. In this respect, the Committee notes with interest that the Government delivered a communication to the mission referred to above, in which it indicates that: (1) the CETCOIT constitutes a special and particularly valuable forum for creating trust between the social partners; (2) it supports the reinforcement of the procedure and, to this end, will allocate the necessary resources so that it is supported for one year by a university to facilitate the resolution of the cases before the CETCOIT; and (3) it will examine the possibility of having recourse to the procedure of a preliminary contacts mission, as envisaged in the rules of procedure of the Committee on Freedom of Association, as it holds the conviction that implementing all mechanisms can improve industrial relations in the country. The Committee requests the Government to provide information in its next report on any progress made in the work of the CETCOIT.

The Committee further notes the adoption of Act No. 1149 of 2007 amending the Code of Labour Procedures and Social Security by introducing oral hearings and making judicial proceedings more flexible. The Committee notes that the mission was informed that it is the responsibility of the Higher Council of the Judiciary to give effect to the Act, for which a time period of four years is envisaged. The Committee notes the existence of pilot plans for the application of these procedures in certain regions of the country, with appeals being decided upon in two months in the first instance and in one month in the second instance.

The Committee welcomes the adoption of Act No. 1309 of 2009 which provides that any person who prevents or disturbs a lawful assembly or the exercise of rights granted by labour laws or engages in reprisals on grounds of lawful strike action, assembly or association, shall be liable to a fine of between 100 and 300 minimum monthly wages as established by law or to imprisonment.

Pending issues

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 with satisfaction that for the first time since the ratification of the Convention in 1976, and following repeated requests, on 24 February 2009 the Government issued Decree No. 535 respecting collective bargaining in the public sector and it observes that, according to the Government’s indications in its report, it has already given rise to tangible results, as processes of dialogue have progressed in the District of Bogotá, in the Ministry of Social Protection and in the Ministry of Education (in the latter case, with the Colombian Federation of Educational Staff (FECODE)), resulting in the conclusion of agreements. The Committee observes that the objective of this Decree is “to establish bodies within which dialogue will be furthered between the trade union organizations of public employees and public sector entities” (section 1), with a view to determining conditions of work and regulating relations between employers and employees (section 2). The Decree also envisages the procedure for engaging in dialogue. The Committee observes that the Decree applies to all state employees, with the exception of high-level employees discharging functions of management, direction and institutional guidance the exercise of which involves the adoption of policies or directives.

In this respect, the Committee notes the indication by the CUT in its comments that the agreement with the FECODE has not been fully respected and that the CUT has lodged an application with the State Council to strike down Decree No. 535, which is currently being examined (this organization and other representative workers’ organizations informed the mission that they challenge Decree No. 535 and indicated that the first draft of the new Decree to amend it, which is not attached, is not in conformity with the Labour Relations (Public Service) Convention, 1978 (No. 151)). The Committee observes that the application for the Decree to be struck down is based in particular on the interpretation of certain provisions of the Colombian Constitution and on issues of compliance with domestic legislation, on which matter the Committee is clearly not competent.

The Committee further notes the Government’s indication to the mission that it is planned to revise the Decree and that a draft Decree to amend it was forwarded to workers’ and employers’ organizations for discussion.

The Committee requests the Government to continue dialogue with trade union organizations with a view to improving the Decree that has already been adopted and to keep it informed on this matter. The Committee is aware that the Decree is very short, can be improved and establishes principles which probably require further regulation to comply more effectively with its objectives and to extend in practice collective agreements in the various institutions. While from a technical viewpoint such regulation may well be appropriate, the Committee recalls that the Convention does not require exhaustive regulation, but rather is compatible with systems that envisage a minimum of interference by the State in collective bargaining in the public sector.

Collective accords with non-unionized workers. The Committee recalls that in its previous observation it referred to the need to ensure that collective accords are not used to undermine the position of trade union organizations, and to the need to ensure the possibility in practice to conclude collective agreements with them. It requested the Government to provide information on the total number of collective agreements and collective accords and the respective number of workers covered by them. The Committee notes that the ITUC and the CUT refer to the low rate of collective bargaining in the country, which only covers 1.2 per cent of workers. In 2008, only 473 agreements were concluded, consisting of 256 collective agreements and 217 collective accords (negotiated directly with the workers).

The Committee notes the Government’s indication that the conclusion of collective accords, which is permitted by the legislation, in no event prevents the trade union from submitting claims and concluding collective agreements, provided that they are in accordance with ruling C-345 of 2007 of the Constitutional Court, under which “direct negotiations between employers and non-unionized workers may not undermine collective bargaining and trade union rights”. The Government emphasizes that the only case in which the same employer may conclude a collective labour agreement and a collective accord is when the trade union represents less than one-third of the workers in the enterprise. The Government adds that in 2008 a total of 209 collective accords were deposited, 15 per cent more than the previous year, when 182 were deposited. With regard to collective agreements, 261 were deposited in 2008, 3 per cent more than in 2007, when 254 were deposited. In this respect, while recalling that collective accords negotiated directly with workers should not be used to undermine the position of trade union organizations, the Committee requests the Government to provide information on the measures adopted to encourage and promote the full development and utilization of voluntary collective bargaining, in accordance with Article 4 of the Convention, and to ensure that the conclusion of collective accords negotiated directly with the workers is only possible in the absence of a trade union and that it is not carried out in practice for anti-union purposes.

Restrictions on the content of negotiations. The Committee notes Legislative Act No. 01 of 2005, amending article 48 of the Constitution on social security, and thereby limiting the right of collective bargaining on pensions. The Committee notes that the comments of ATELCA refer to this matter. The Committee observes that the Act provides that: as from the coming into force of the present Legislative Act, pension conditions that differ from those set out in the laws on the General Pensions System shall not be established in accords, collective labour agreements, awards or any juridical act. Without prejudice to acquired rights, the scheme applicable to members of the public forces and the President of the Republic, as established in the clauses of this section, the period for which special pension schemes are in force, those covered by exceptions, as well as any other difference from the permanent provisions of the laws on the General Pensions System, shall expire on 31 July 2010.

The Committee notes the Government’s indication in this respect that article 48 of the Constitution provides that social security shall be provided in accordance with the principles of efficiency, universality and solidarity. The Government adds that the universality of the system presupposes protection guarantees for all persons, without discrimination whatsoever, at all the stages of life, and that this guarantee without discrimination can only be offered by a unified system which cannot be varied at the will of one sector of beneficiaries. Account has to be taken not only of the principles governing the social security system, but also of the economic consequences of the current situation, as well as those in the medium and long term. The Government adds that Act No. 100 of 1993 already provided that pension schemes were not to be included in collective bargaining. The principal objective of Legislative Act No. 01 of 2005 is to ensure effective entitlement to a pension for all inhabitants who meet the requirements of the law for the granting of such entitlement, under conditions of equality and without privilege.

The Committee observes that this matter was examined by the Committee on Freedom of Association in the context of Case No. 2434 (see 344th Report of the Committee on Freedom of Association). The Committee of Experts observes that in its conclusions the Committee on Freedom of Association considered that, with regard to agreements concluded prior to the entry into force of the legislation, which would no longer be in force as from 2010 under the terms of the Legislative Act, this could imply in certain cases a unilateral modification of the content of signed collective agreements, which is contrary to the principles of collective bargaining, as well as the principle of the acquired rights of the parties. In this respect, it requested the Government to take the appropriate measures so that collective agreements containing clauses on pensions continue to produce their effects until their expiry date, including after 31 July 2010.

With regard to agreements concluded after the entry into force of Legislative Act No. 01, and particularly in relation to the general prohibition of the establishment of a pension scheme that differs from any established under the General Pensions Scheme, the Committee on Freedom of Association requested the Government, in order to ensure harmonious industrial relations in the country, to hold in-depth consultations on retirement and pensions with the interested parties in order to find a negotiated solution acceptable to all the parties concerned, in accordance with the Conventions on freedom of association and collective bargaining ratified by Colombia, and to ensure in particular that the parties to collective bargaining can improve statutory pension benefits or pension schemes by mutual agreement.

In the same way as the Committee on Freedom of Association, the Committee of Experts recalls that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties (see General Survey on freedom of association and collective bargaining, 1994, paragraph 250).