Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Collective Bargaining Convention, 1981 (No. 154) - Colombia (Ratification: 2000)

The Committee notes the observations from the Union of Cali Municipal Enterprise Workers (SINTRAEMCALI), the General Confederation of Labour (CGT), the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers (CUT), received between 4 June and 1 September 2014, referring to issues already discussed by the Committee and citing difficulties relating to the application of the Convention in practice in both the public and private sectors. The Committee notes the Government’s reply to the 2011 observations of the CUT, the 2012 observations of the Trade Union Association of Public Employees of the Ministry of Defence, Armed Forces and Associated Agencies (ASODEFENSA), the 2013 observations of the World Federation of Trade Unions (WFTU), of the 2013 observations of the National Association of the Employees of the Bank of the Republic (ANEBRE), and the 2014 observations of SINTRAEMCALI.

Article 5 of the Convention. Promotion of collective bargaining. The Committee notes the adoption of Decree No. 160 of 2014 concerning procedures for bargaining and settlement of disputes with public employees’ organizations, and the signature of a substantial number of collective agreements in the public administration, a subject that the Committee raises in its examination of the application of the Labour Relations (Public Service) Convention, 1978 (No. 151). The Committee also notes that the Government refers to the adoption, further to tripartite consultations in the Standing Committee for Dialogue on Wage and Labour Policies, of Decree No. 089 of 2014 regulating section 374(2) and (3) of the Labour Code with a view to promoting collective bargaining through unified or consolidated bargaining.

Impact of collective accords with non-unionized workers on the promotion of collective bargaining. In its observations of 2011 and 2014, the CUT stated that: (i) collective accords signed with non-unionized workers are widely used to discourage the exercise of freedom of association and collective bargaining; (ii) statistics show the negative effect of collective accords on trade union membership; (iii) in practice collective accords are often used to set a ceiling in advance on economic benefits due from the employer, thereby truncating the collective bargaining process; (iv) 203 collective accords were adopted in 2013; and (v) despite numerous complaints, the authorities have not imposed any criminal penalties so far in relation to the unlawful use of collective accords. The Committee notes that the Government reiterates in its report that: (i) where a collective accord and a collective agreement coexist in the same enterprise, the employer must respect the right to equality and may not use either of the two instruments to offer prerogatives or concessions improving the conditions of some workers to the detriment of others; (ii) Act No. 1453 of 2011 establishes penalties for anyone concluding collective accords that, overall, grant better conditions than those established in collective agreements; and (iii) labour inspectors have been trained, with ILO support, in the handling of disputes relating to collective accords. While noting the Government’s indications, the Committee recalls that, in line with the obligation to promote collective bargaining under the terms of the Convention, collective accords with non-unionized workers should only be possible in the absence of representative trade unions. The Committee therefore again requests the Government to take the necessary measures in this respect, in consultation with the most representative workers’ and employers’ organizations, and to provide information on any developments. The Committee also requests the Government to provide information on the respective numbers of collective agreements and collective accords adopted in the country.

Article 5(b). Subjects covered by collective bargaining. Exclusion of pensions. The Committee notes that the CUT, CTC, SINTRAEMCALI and ANEBRE denounce the persistent exclusion of the subject of pensions from the sphere of collective bargaining, further to the reform of article 48 of the Constitution of Colombia by Legislative Act No. 01 of 2005. The Committee notes the Government’s indication in its report that: (i) Legislative Act No. 01 of 2005 does not compromise the essence of collective bargaining because it deals with matters other than the regulation of conditions of work or employment or worker/employer relations; (ii) the constitutional reform of 2005 guarantees the equity and financial sustainability of the general pension system; and (iii) the recent ruling of the Plenary Chamber of the Constitutional Court (No. 555 of 24 July 2014) confirms that the clauses in collective agreements containing provisions relating to pensions expired on 31 July 2010, with due observance of the acquired rights of persons who fulfilled the requirements for access to the pension established by the agreement at the time of entry into force of the reform, and taking due account of the legitimate expectations of workers who complied with those requirements as at 31 July 2010. The Committee requests the Government to indicate whether the aforementioned ruling permits agreements with trade unions holding collective agreements with clauses relating to pensions before 31 July 2010 in order to accommodate the situation of workers who had fulfilled only part of the requirements for access to the pension established by the agreement, especially where the contributions paid were greater than those in the current scheme.

The Committee recalls that the establishment by law of a general mandatory pension scheme is compatible with collective bargaining by means of a complementary system. In view of the above, the Committee requests the Government to take the necessary measures, in consultation with the representative social partners, to ensure that parties to collective bargaining are not prohibited, in both the public and private sectors, from improving pensions through complementary benefits, when budgetary conditions allow it for public enterprises and institutions. The Committee requests the Government to provide information on any developments in this respect and reminds it that it may avail itself of technical assistance from the Office if it wishes.

Article 5(e). Bodies and procedures for the settlement of disputes and promotion of collective bargaining. The Committee notes that the trade union federations denounce the excessive slowness of the functioning of the arbitration tribunals as a result of delaying tactics on the part of certain employers and the lack of an adequate response to such practices from the public authorities, which is seriously affecting the exercise of the right to collective bargaining. Observing that this subject is under discussion in the Standing Committee for Dialogue on Wage and Labour Policies, the Committee requests the Government to take the necessary measures to ensure that the social dialogue in progress can solve the problems indicated and to keep it informed of any developments in this respect. The Committee also requests the Government, in the context of social dialogue, to examine the numerous cases of obstruction of collective bargaining referred to in the observations of the trade union federations.

Coverage of collective bargaining in the private sector. The Committee requests the Government to send its comments on the statement made by the CUT that less than 1 per cent of the active population is covered by a collective agreement and to provide information on the measures taken to promote collective bargaining in the private sector.