Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Colombia (Ratification: 1969)

The Committee notes the observations made by the Single Confederation of Workers of Colombia (CUT) and the General Confederation of Labour (CGT), of 2 September 2015. The Committee further notes the Government’s reply to the observations made by the Confederation of Workers of Colombia (CTC), the CUT and the CGT, dated 28 November 2015. In addition, the Committee notes the observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE), of 18 October 2013 and 1 September 2015, which refer to the measures adopted by the Government for the application of the Convention.

Article 2 of the Convention. Policy for equality in relation to race, colour and social origin. In its previous comments, the Committee requested the Government to provide specific information on the impact on the eradication of discrimination on grounds of race, colour and social origin of the various measures adopted by the Government in relation to Afro-Colombian and indigenous peoples. The Committee notes that, in their observations, the CUT and the CGT indicate that there are no specific data on discrimination against Afro-Colombian and indigenous peoples, and emphasize the importance of an adequate analysis of this data to ensure that the measures adopted by the Government are appropriate. According to the CUT, Afro-Colombian workers are concentrated in lower skilled work and receive lower wages than other workers. This situation particularly affects Afro-Colombian women. The CGT adds that place of residence is currently a criterion of discrimination on grounds of social origin. The Committee notes the Government’s indications in its report that in October 2012, a national forum was held on Afro-Colombians in the world of work with the participation of various public institutions and Afro-Colombian associations, as well as the discussion group on development with inclusion and labour protection for indigenous communities. In 2013, as a result of a series of meetings held in various departments with indigenous and Afro-Colombian populations, a proposed public policy was prepared for the labour market inclusion of Afro-Colombians, Raizal and indigenous peoples. The Government indicates that the Ministry of Labour carried out a socio-labour survey in the city of Cali, which is the city with the highest Afro-Colombian and indigenous population (24 per cent). The Committee notes that, according to the results of the survey, the activity rate is 53.8 per cent for indigenous workers, 49.8 per cent for Afro-Colombian workers, 53.3 per cent for Mulatto workers, 53.8 per cent for White workers and 52.5 per cent for Mestizo workers. The unemployment rate is 14.3 per cent for indigenous workers, 21.1 per cent for Afro-Colombian workers, 15 per cent for Mulatto workers, 13.7 per cent for White workers and 15.5 per cent for Mestizo workers.

The Government also reports the adoption of Act No. 1482 of 2011 to protect the rights of individuals, groups, communities or peoples against racism and discrimination, and the establishment by Decision No. 1154 of 2012 of the Discrimination and Racism Observatory. A special allocation of educational credits has also been made for Afro-Colombian and indigenous communities to ensure the access and continued presence of Afro-Colombian and indigenous students in higher education. The Committee notes that the Government’s report does not contain information on the impact of the measures and actions to which it referred in its previous report, namely: the strategy “Towards a national decent work policy in the framework of fundamental rights” and the “Strategy to promote dignified and decent work, from a corporate social responsibility perspective, for vulnerable population groups in Colombia”; the policy to promote equality of opportunity for the Black, Afro-Colombian, Raizal and Palenquero population and the Development Plan for Black, Afro-Colombian, Raizal and Palenquero Communities (2010–14). The Committee emphasizes in this regard the importance of undertaking an evaluation of the measures adopted to determine their impact and effectiveness in the elimination of discrimination.

The Committee requests the Government to continue adopting specific measures for the eradication of discrimination on the basis of race, colour, and social origin. Recalling that the Convention requires the national equality policy to be effective and that, in accordance with Article 3(f) of the Convention, information has to be provided on the results secured by the action taken, the Committee requests the Government to provide information on the impact of the measures taken including the educational audits on the inclusion of Afro-Colombian and indigenous peoples in the labour market under equal conditions with other workers in terms of access to employment, promotion and wage equality. In particular, the Committee requests the Government to provide information on the activities carried out by the Discrimination and Racism Observatory, and the information collected by the Observatory, including statistical information disaggregated by sex, race and place of residence (where available) on the labour market inclusion of Afro-Colombian and indigenous workers. The Committee requests the Government to indicate whether the strategies and measures referred to in its previous report are still in force.

Discrimination on the basis of sex. Sexual harassment. In its previous comments, the Committee requested the Government to provide further information on the procedures followed by the labour inspectorate and the Ministry of Labour in relation to complaints of sexual harassment; the number of complaints filed and their outcomes; the application of section 3 of Act No. 1010 of 2006 on harassment at work (which provides for mitigating circumstances); and the application of the Act to associated work cooperatives. The Committee notes the Government’s indication that a survey of perceptions of sexual harassment at the workplace was carried out in 2014 in 13 metropolitan areas, and that approaches to dealing with cases of sexual harassment have been prepared jointly with the Office of the Public Prosecutor. Training has been provided for labour inspectors and workshops have been held in enterprises, as well as trade union meetings on this subject in 2015. The Government adds, with reference to associated work cooperatives, that Act No. 1010 applies to those workers who are in an employment relationship. The Committee observes that the information on the activities carried out by the labour inspectorate in response to requests for intervention and conciliation is not disaggregated by type of violation, but refers in general to labour harassment, which does not make it possible to determine the extent to which sexual harassment is dealt with by the labour inspectorate and other labour authorities. Moreover, the information supplied does not provide a basis for determining the manner in which sections 9 and 10 of Act No. 1010 concerning the prevention and punishment of labour harassment are applied in practice to cases of sexual harassment. Nor does the Government explain the application of the mitigating circumstances envisaged in section 3 of the Act. The Committee observes that those mitigating circumstances include violent emotions (which are not applicable in the case of sexual harassment), previous good conduct, discretionary compensation measures, even though they may be partial, and the harm caused. In this connection, the CUT indicates that mitigating circumstances may lead to the failure to impose penalties. The Committee recalls that acts of discrimination occur irrespective of the intentions of those responsible and considers that in the case of sexual harassment the types of mitigating circumstances envisaged in section 3 diminish the dissuasive nature of the penalties. Noting that, under the terms of section 1, Act No. 1010 does not apply “to civil or commercial relations deriving from service provision contracts for which there is no relationship of hierarchy or subordination”, the Committee recalls that all workers without distinction, including workers in cooperatives, whether or not they are in a dependent employment relationship or are self-employed, must be afforded adequate protection against discrimination, including against sexual harassment at work. While emphasizing the development of different actions to deal with cases of sexual harassment, the Committee requests the Government to take measures to raise awareness concerning these actions so as to ensure that they are easily accessible and effective, and that there is adequate compensation for victims and sufficiently dissuasive penalties for those responsible. Recalling that sexual harassment is a serious infringement of the right to dignity that should be strictly sanctioned without taking into account previous good conduct or voluntary compensatory measures, the Committee requests the Government to repeal the mitigating measures provided for in section 3 of Act 1010 of 2006 on harassment at work whenever the Act will be revised in the future. The Committee also requests the Government to ensure that all workers, including workers in cooperatives and self-employed workers, benefit from adequate protection against sexual harassment. The Committee requests the Government to provide information on any developments in this respect, and particularly on the specific number of cases of work-related sexual harassment examined by the labour inspectorate and by administrative or judicial bodies, the penalties imposed and the compensation granted.

The Committee is raising other matters in a request addressed directly to the Government.