Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee recalls that, in its previous comments, it requested the Government to provide its comments on the observations made by the trade union confederations concerning the obstacles, both legal and practical, to trade union membership faced by workers without an employment contract, with special emphasis on the situation of apprentices, workers with service provision contracts, workers in associated work cooperatives, the unemployed and retirees. The Committee notes that, in its observations in 2019, the General Confederation of Labour (CGT) once again emphasizes this issue, alleging that the courts and the Ministry of Labour interpret in a restrictive manner the provisions of the Substantive Labour Code so as to recognize the right to organize in trade unions solely of salaried employees.

The Committee notes that, in its replies to the observations of the trade union confederations, the Government indicates that the various categories of workers referred to above can exercise freedom of association through their membership of federations, confederations or branch unions, although membership of enterprise unions does require the existence of a contract of employment between the worker and the enterprise. The Committee welcomes the Government’s indication that the scope of application of freedom of association covers all workers, irrespective of their contractual status. With reference to the Government’s indication that the establishment or membership of a first-level or enterprise union requires the existence of a contract of employment with the enterprise, the Committee recalls firstly that the legislation should not prevent retirees and the unemployed from joining trade unions, if they so wish, particularly when they have participated in the activity represented by the union. The Committee requests the Government to clarify the position in law in this regard. Secondly, the Committee considers that, in a general context of the diversification of contractual arrangements for the performance of work, and in the context in Colombia of collective labour relations focusing on trade unionism and collective bargaining at the enterprise level, workers who provide their services for an enterprise without having concluded a contract of employment with the enterprise may consider it appropriate to be members of the corresponding enterprise union. In light of the above, the Committee requests the Government to provide detailed information on the possibilities that are available in practice for apprentices, workers engaged under service provision contracts and workers engaged by private employment agencies to promote and defend their occupational interests effectively, including through collective bargaining, in the event that they are not able to be members of enterprise unions.

Trade union census. In its previous comments, the Committee also requested the Government to provide data on the unionization rate in the country for the next reporting year and the prior two years. The Committee welcomes the information provided by the Government on the trade union census undertaken in 2017, following broad consultation with the principal trade union confederations in the country. The Committee notes the Government’s indication that the census shows that: (i) the total number of members of trade unions in the country is 1,378,626 workers; (ii) these workers account for 5.8 per cent of the economically active population, 6.4 per cent of employed persons in the country and 17.3 per cent of formal workers in the country, and 18.9 per cent of workers with written employment contracts; and (iii) 64 per cent of union members are men and 36 per cent are women.

The Committee also notes the observations of the Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC) which, emphasizing their active participation in the conduct of the census, observe that its results give membership figures that are higher than the real situation through the inclusion in the census of: (i) associations with non-labour purposes that are clearly distinct from those of unions (for example, such as organizations of persons of African descent), but which have freely decided to affiliate with a trade union confederation; and (ii) false unions established to replace the defunct associated work cooperatives so that they can continue to engage in employment mediation. According to the CUT and CTC, the real figures for trade union membership would be 4.9 per cent of the economically active population and 5.4 per cent of the employed population. The Committee notes that these estimates are also shared by the CGT. Without prejudice to the discrepancies indicated in the exact data for trade union membership, the Committee notes with interest the participatory process for the conduct of the trade union census. The Committee requests the Government to continue providing information on developments in this regard.

Article 3. Right of trade unions to organize their activities. In its previous comments, the Committee invited the Government to provide its comments on the observations of the CGT, CUT and CTC alleging the absence of legal regulations respecting the trade union guarantees and facilities that should be enjoyed by trade unions in the enterprise (free time, trade union leave, right of access to workplaces, the right to communicate with the workers and to disseminate information) and the great difficulties experienced in obtaining recognition for these guarantees and facilities in collective agreements. The Committee notes the Government’s statement in response that, although the recognition and development of trade union leave has been carried out by means of collective agreements, trade union leave has both a constitutional basis (article 39 of the Constitution provides that “trade union representatives are recognised (…) other guarantees necessary for the performance of their duties”) and a legal basis (section 57.6 of the Substantive Labour Code provides that it is the employer’s obligation to grant the worker the necessary permits to (…) perform the trade union commissions required by the organization). For this reason, the absence of regulation through collective bargaining does not prevent trade union leave from being granted by the employer. The Committee alos requested the Government to provide information on the manner in which such guarantees and facilities are provided for in collective agreements. The Committee notes that although the Government has provided data on the number of collective agreements concluded and in force in the country, it has not indicated the manner in which these agreements regulate the guarantees and facilities afforded to trade unions for the exercise of their activities. While taking due note of the information provided, the Committee reiterates its previous request for information and encourages the Government, in consultation with the representative social partners in the country, to examine the possibility of further regulating in law the conditions for granting and the minimum level of guarantees and facilities from which trade unions should benefit to be able to exercise their activities in the enterprise.

Right of organizations to determine their structure. In its previous observation, the Committee invited the Government to provide its comments on the observations of the CGT, CUT and CTC relating to the fact that the Substantive Labour Code, on the one hand, only allows the establishment of chapters of trade unions at the municipal level, thereby denying the possibility of establishing chapters in regions or departments where they have members and, on the other hand, national trade unions are not permitted to establish a section or chapter in the locality where they have their national headquarters. The Committee notes the Government’s indication that the Constitutional Court emphasized that the conditions for the operation of trade unions must be in accordance with the principles of a democratic society and that it had an opportunity to rule on the second limitation criticized by the trade union confederations in a ruling in 2006. The Government indicates that the Constitutional Court upheld the prohibition set out in section 55 of Act No. 50 of 1990 (section 400-A of the Labour Code) on national unions from establishing a section or chapter in the locality where they have their national headquarters on the grounds that the provision adopted a decentralizing approach to the benefit of the democratic representation of workers. The Committee takes due note of the ruling of the Constitutional Court and recalls both the need for the operation of trade unions to comply with democratic principles and the importance of their independence in relation to their internal organization. The Committee also notes that the Government has not provided comments on the alleged impossibility for unions to establish chapters in regions or departments. In light of the above, the Committee invites the Government to engage in dialogue with the representative trade union confederations in the country on the possibility of amending the legislation respecting the internal structure of trade unions with a view to giving full effect to the two objectives set out above.