Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Comments from workers’ and employers’ organizations. The Committee notes the comments of the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), dated 30 August 2010 and 29 August 2011; the International Trade Union Confederation (ITUC), dated 31 August 2010 and 4 August 2011; Education International (EI), dated 7 October 2010; and the General Confederation of Labour (CGT), dated 1 September 2011. The Committee notes that these comments refer in general to matters that are already under examination by the Committee, and particularly to acts of violence against trade union leaders and members, including murders and other acts of violence, as well as the impunity in relation to many acts of violence.

The Committee also notes the comments of the National Employers’ Association (ANDI), dated 31 August 2011.

The Committee notes the Government’s various communications related to these comments.

Technical assistance missions. The Committee notes that, at the request of the Government, preliminary contact missions were undertaken in 2010 in relation to the various cases before the Committee of Freedom of Association. The Committee observes that these missions provided an opportunity for the parties to reach agreements and request the withdrawal of several complaints.

The Committee takes due note of the fact that the Government invited a high level tripartite mission, which visited the country from 14 to 18 February 2011. The Committee notes the report of the mission and particularly its conclusions addressing issues related to the strengthening of social dialogue, measures to combat violence and impunity, the employment mediation carried out by associated work cooperatives and the obstacles to freedom of association which may arise from such cooperatives, the need to strengthen labour inspection and certain pending legislative issues.

The Committee notes with interest the indication by the Government that the following measures have been adopted further to the conclusions of the high-level tripartite mission: (1) in relation to labour inspection, through Decree No. 1128 of 15 April 2011, 100 new labour inspectorates were established with a view to continuing to strengthen the inspection system and increasing the numbers of inspectors to 524; (2) with reference to the strengthening of the Special Committee for the Handling of Conflicts Referred to the ILO (CETCOIT), it has been agreed to establish departmental branches, with clear rules being established on their operation and gradual establishment through pilot programmes; the statutes of the CETCOIT were approved and, in February 2011, a letter of intent was signed under which the Government is providing US$300,000 for the strengthening of the CETCOIT and the promotion of international standards; (3) in relation to measures to combat violence and impunity, the Government adopted Decision No. 716, of 6 April 2011, of the Ministry of the Interior and of Justice “issuing instructions on the scope of the position of trade union leader and activist”. Through this text, not only is protection provided to trade union leaders, but also to trade union activists and to workers who have not been able to establish a union due to the threats received. An emergency plan was implemented to update pending applications relating to risk levels, with only 17 pending applications. Directive No. 013 of 19 April 2011 was adopted establishing a plan for 100 police officers to combat impunity in relation to crimes affecting trade unionists. The Office of the Public Prosecutor is promoting action for the training of investigators and prosecutors, with such action envisaging visits to regions, which will include roundtable meetings with trade union organizations. The National Human Rights and International Humanitarian Law Unit is in the process of being strengthened, in accordance with Decree No. 2248 of 28 January 2011, under which changes are being made to the personnel of the Office of the Public Prosecutor of the Nation, with 60 new specialized prosecutors, reaching a total of 162 prosecutors at the national level from the month of January 2012. In accordance with these commitments, the Office of the Public Prosecutor has continued its investigations in the context of Cases Nos 1787 and 2761 (submitted to the Committee on Freedom of Association concerning acts of violence), with a current total of 415 guilty verdicts and 567 persons convicted, thereby clearly showing the increase in the number of convictions from one in 2001 to 415 in 2011. By decision of the Public Prosecutor of the Nation, cases involving violence against trade unionists have been assigned to the Human Rights Sub-Unit, and the Government allocated a budget to the Office of the Public Prosecutor of US$20 million; (4) the Congress of the Republic has approved Act No. 1444 of 2011 establishing the Ministry of Labour, with the technical assistance of the ILO being provided with a view to giving effect to the Act; and (5) regional dialogue machinery has been strengthened with the support and the establishment of departmental wage and labour policy dialogue subcommittees, and a significant campaign has been launched for the training of the social partners.

Tripartite Agreement on Freedom of Association and Democracy. The Committee also notes the Government’s indication that in May 2011 the Government, workers and employers renewed the Tripartite Agreement on Freedom of Association and Democracy which they had concluded in 2006. With the signature of this Agreement, the State confirmed its commitment to continue promoting and deepening dialogue on social and labour matters in the country. The Government observes that it is of great importance to extend and deepen cooperation with the ILO in various fields, including with regard to associated work cooperatives, temporary employment agencies and regulations respecting collective agreements. The Committee notes the Government’s indication that, with a view to ensuring greater efficiency in this broad range of activities and cooperation, it may be appropriate to establish an ILO mission in the country, of which the principal task would be the coordination of the various fields of assistance.

Finally, the Committee notes that the Colombian Government and the Government of the United States agreed, on 7 April 2011, on a plan of action for the period up to 2013, which includes the following subjects: the reform of the criminal justice system, associated work cooperatives, temporary work agencies, collective agreements, essential services and protection programmes.

Trade union rights and civil and political liberties

The Committee recalls that for many years it has been examining allegations of violence against trade unionists and the situation of impunity, which have been submitted to the Committee of Freedom of Association in Cases Nos 1787 and 2761. The Committee notes with concern that the ITUC, the CUT, the CTC and EI allege that 51 trade unionists were murdered in 2010 and 20 between 1 January and August 2011, and that the situation of impunity in relation to crimes against trade unionists has not changed in view of the low number of convictions, the slowness of investigation processes and the high number of murders which are not investigated. The Committee notes that, according to the Government, there were 48 murders of trade unionists between 1 January 2010 and the month of June 2011, and that between 2001 and 2011 there were 354 convictions, and 88 between 1 January 2010 and June 2011, with 483 persons being convicted and 355 sentenced to imprisonment. The Committee also notes the Government’s indication that the programme for the protection of trade union leaders is continuing and has a budget of US$19,498,000 for the protection of 1,454 trade union leaders.

The Committee notes that, according to the Government, it is necessary to examine the context in which acts of violence occur to determine whether they are related to the general climate of violence or were committed for reasons relating to trade union activities. The Committee also notes the indication by the ANDI that it undertook a study of court decisions relating to crimes against trade unionists and that a reading and analysis of the rulings does not show in any way that the murders of trade unions are due to a policy of the State or of employers, and that in general it may be concluded that the violence affecting trade unionists has decreased in recent years. In this respect, as affirmed by the mission which visited Colombia in 2009, with a view to providing support for investigations into acts of violence against the trade union movement, the Committee considers that a tripartite analysis could be undertaken, in the context of the Dialogue Commission on Wage and Labour Policies, of the criteria for sorting the information that is to be referred to investigation bodies and it hopes that this will provide a basis for the compilation of harmonized statistics on violence for anti-trade union reasons.

The Committee welcomes the adoption of the Act respecting victims and the restitution of lands (Act No. 1448 of 10 June 2011), the objective of which is to compensate, restore and indemnify victims of the armed conflict in Colombia.

The Committee deplores the murders and acts of violence against trade unionists which have been occurring for years. The Committee notes the divergences in the statistics concerning the violence affecting the trade union movement. The Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected. Although it is aware of the gravity of the situation, the Committee welcomes all the measures, of a practical and legislative nature that the Government has been adopting to combat violence in general and against the trade union movement, as well as the significant increase in convictions. The Committee wishes to point out, along the lines of the high-level tripartite mission, that it continues to be deeply concerned at the situation and hopes that the Government will continue to take the necessary effective measures combating the serious violence against trade union leaders and members and convicting those responsible for these acts.

Pending legislative and practical issues

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Associated work cooperatives. In its previous observation, the Committee requested the Government to consider the possibility of an independent expert undertaking a national study on the application of the Act respecting cooperatives, and the use of cooperatives in the area of industrial relations, and also to clarify the issue of whether or not workers in cooperatives can organize. The Committee notes with satisfaction the adoption of Decree No. 2025 of 8 June 2011, further to the conclusions of the high-level tripartite mission of 2011 which, among other provisions, establishes that no worker may be recruited without the labour rights and guarantees established in the Political Constitution and the law, including workers who are members of cooperatives. The Committee also notes that the updating of the 2006 Tripartite Agreement proposes as one of its objectives measures to combat all forms of intermediate employment which disregard the labour rights of workers, by regulating the activities of associated work cooperatives and pre-cooperatives and increasing the penalties when they engage in intermediate employment activities.

Articles 3 and 6. Right of workers’ organizations to organize their activities and to formulate their programmes. Restrictions imposed on the activities of federations and confederations. The Committee recalls that for a number of years it has been referring to the need to take measures to amend the legislation in relation to:

• – the prohibition of strikes, not only in essential services in the strict sense of the term, but also in a very broad range of services that are not necessarily essential (section 430(b), (d), (f), (g) and (h); section 450(1)(a) of the Labour Code, Tax Act No. 633/00 and Decrees Nos 414 and 437 of 1952, 1543 of 1955, 1593 of 1959, 1167 of 1963 and 57 and 534 of 1967);
• – the possibility to dismiss workers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even where the unlawful nature of the strike is a result of requirements that are contrary to the principles of freedom of association; and
• – the prohibition of the calling of strikes by federations and confederations (section 417(i) of the Labour Code).

In this regard, in its previous observation the Committee noted that, under the terms of Act No. 1210, the legality or unlawful nature of a collective work suspension or stoppage shall be determined by the judicial authorities in a priority procedure and that it is for the judicial authorities to determine when a service is essential. Taking into account the fact that the updating of the 2006 Tripartite Agreement envisages further cooperation with the ILO and that the plan of action agreed with the Government of the United States envisages addressing issues relating to essential services, the Committee trusts that the Government will undertake a tripartite analysis of the legislative provisions referred to above which will take into account the rulings of the Supreme Court and of the Constitutional Court in this respect. The Committee requests the Government to provide information in its next report on any measures adopted in this context.