Report in which the committee requests to be kept informed of development - Report No 387, October 2018

Case No 3137 (Colombia) - Complaint date: 10-JUN-15 - Follow-up

Allegations: The complainant organization alleges that the concept of union contracts, whereby trade unions may sign agreements with enterprises for the provision of services or the performance of tasks by their own members, undermines the purpose and autonomy of trade union organizations, the right of workers to freedom of association, and free and voluntary collective bargaining

1. 283. The complaint is contained in a communication of 10 June 2015, presented by the Single Confederation of Workers of Colombia (CUT).
2. 284. The Government sent its observations in communications received on 24 May 2016 and on 1 December 2017.
3. 285. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 286. In a communication of 10 June 2015, the complainant organization alleges the anti-union nature of union contracts, a type of contractual arrangement established by Colombian legislation whereby a trade union agrees to provide services or perform a task for an enterprise through its members. The complainant states that union contracts undermine the purpose and autonomy of trade union organizations, the right of workers to freedom of association, and free and voluntary collective bargaining, thus violating various provisions of Conventions Nos 87 and 98.
2. 287. The complainant organization first describes the concept of a union contract, defined by sections 482 et seq. of the Substantive Labour Code as a contract that is “concluded by one or more trade unions with one or more employers or employers’ organizations for the provision of services or the performance of a task by its members” and regulated by section 1 of Decree No. 1429 of 2010, which provides that “a union contract, as a mutual agreement of a collective labour nature, has the characteristics of an authenticated, nominate and main contract, which may be concluded and executed by one or more trade unions with one or more employers or employers’ organizations for the provision of services or the performance of tasks by their own members, in the exercise of freedom of association, with administrative autonomy and financial independence on the part of the trade union or unions, and regulated by the standards and principles of collective labour law.” The complainant adds that, under the Colombian legislation in force, a union contract has the following characteristics: (i) a trade union organization that has signed a union contract is responsible both for the obligations arising directly from the contract and for compliance with the obligations established for its members; (ii) should the contract be terminated, the workers will continue to provide their services in accordance with the conditions stipulated in the contract until the contract expires; (iii) for all legal purposes, the legal representative of the trade union must represent the members participating in the union contract; and (iv) disputes arising in relation to the union contract may be resolved by a voluntary arbitration tribunal or by other alternative mechanisms should the parties agree to it; labour courts are the competent bodies in the absence of such clauses.
3. 288. The complainant organization states that it is clear from the above that a trade union that signs a union contract becomes an intermediary in the employment relationship, given that all the employer obligations relating to the performance of the task or the provision of the service are in the hands of the union, as the workers who carry out the work do not have any legal connection to the user enterprise. The complainant adds that: (i) in recent years, the use of union contracts has undergone exponential growth, increasing from 46 in 2009 to 964 in 2013, and that 1,796 union contracts were concluded between 1 January 2013 and 1 July 2014; (ii) it is estimated that, in 2014, some 400,000 workers were bound by this type of contractual arrangement; (iii) out of the aforementioned 1,796 union contracts, 1,754 (97.7 per cent) occurred in the public sector and 1,777 (98.9 per cent) in the health sector; (iv) in practice, union contracts have replaced associated labour cooperatives as a labour intermediation mechanism; (v) the 1,796 union contracts referred to above were concluded by 104 trade union organizations that supply labour to their contracting enterprises; and (v) this replacement and the surge in the number of union contracts are the result of various regulatory changes that occurred between 2010 and 2011 (the issuance of Decree No. 1429 of 2010 streamlining procedures to conclude union contracts; the prohibition of the use of associated labour cooperatives for the supply of workers in permanent core functions of enterprises; and two Constitutional Court judgments – T-457 and T-303 of 2011 – which found that union contracts were not a source of labour rights).
4. 289. The complainant organization additionally states that the three main problems generated by the use of union contracts are: (i) the continuation and spread of illegal labour informality, as all the union contracts examined in the country seek to conduct activities specific to the user enterprises; (ii) the violation of basic labour rights, such as the right to social security or holidays; and (iii) the alteration of union activity. With regard to the latter, the complainant states that, of the various labour intermediation mechanisms, union contracts are of the greatest concern, as they not only involve illegally subcontracting tasks that are permanent functions of the enterprise, but they also entail subverting the principles and purposes of trade unionism, which are to improve the working conditions of union members through collective action, while union contracts are a form of segmenting the workforce so that a minority (the legal representative of the trade union) acts as the employer of the majority of the workers. The complainant adds in this respect that: (i) 41 per cent of the 1,796 union contracts examined require workers to pay a fee simply to join the trade union; (ii) only 5.6 per cent of union contracts require the payment of union dues based on the national average (that is, approximately 1 per cent of incomes in the private sector and 2 per cent in the public sector), while the dues required by the remaining union contracts are usually higher than average; (iii) 65 per cent of the union contracts examined prohibit the exercise of the right to strike in the user enterprises; and (iv) 22 per cent of the union contracts studied expressly prohibit the exercise of freedom of expression. In the light of the foregoing, the complainant alleges that many supposed trade unions that manage union contracts are not real trade union organizations, as they are established solely for profit.
5. 290. The complainant organization also refers to the provisions of Conventions Nos 87 and 98 that are allegedly violated by union contracts. The CUT points out, first, that in the framework of a union contract, union membership is synonymous with access to and remaining in employment, which means that workers face a high level of pressure both when joining and leaving the trade union organization. The complainant adds that, in so far as the workers bound by union contracts cannot freely leave the union that provides them with employment, union contracts violate both the right to freedom of association and the right to protection against anti-union discrimination, established respectively in Article 2 of Convention No. 87 and Article 1 of Convention No. 98. In this respect, the CUT states that the use of union contracts in Colombia is similar to the use of protection contracts in Mexico. The complainant also states that union contracts lack the democratic and collective nature that is essential to the functioning of real trade union organizations, given that the legislation applicable to union contracts does not require the union contract and the commercial offer to the user enterprise to be based on the participation of the union members or on any democratic mechanism for the discussion and adoption of the provisions of the union contract. This contrasts dramatically with Colombian legislation, which establishes, in detail, conditions to ensure that other collective decisions of trade union organizations, in particular the signing of collective agreements, comply with democratic principles. The complainant considers that the above contravenes both Article 3 of Convention No. 87 relating to the election of union representatives in freedom and Article 4 of Convention No. 98 on the promotion of collective bargaining. The CUT also alleges that union contracts are contrary to Article 8 of Convention No. 87, which provides that workers’ and employers’ organizations shall respect the law of the land, since they constitute a triple violation of the Colombian legislation in so far as union contracts: (i) that have been signed by fake trade unions are not the result of freedom of association, but rather, of freedom of enterprise; (ii) facilitate illegal labour intermediation, as only temporary employment agencies can provide labour intermediation; and (iii) serve as a mechanism to sidestep workers’ labour rights. The complainant further states that union contracts violate Article 10 of Convention No. 87, which defines workers’ and employers’ organizations, given that the trade unions become intermediaries in the employment relationship, similar to temporary employment agencies, since in the framework of such contracts, all the employment obligations are in the hands of the unions, which subsequently alters them. Lastly, the complainant states that union contracts enable, encourage and promote the establishment of workers’ organizations dominated by employers, thus violating Article 2 of Convention No. 98, which prohibits any interference by employers and employers’ organizations in the establishment and functioning of workers’ organizations.
6. 291. The complainant organization further states that, in spite of its responsibility to ensure compliance with labour standards, the Ministry of Labour has not conducted any type of labour inspection or monitoring of trade union organizations and enterprises that use union contracts. Moreover, it has not alerted the legislator of the legal gaps in the regulations on union contracts, the ambiguities of which seem to allow for exceptions to labour rights. Furthermore, it has not requested the labour court to cancel the union registration of the fake unions that have signed union contracts. In particular, the complainant alleges that the administrative labour complaints that have been filed to date in relation to union contracts have not resulted in effective protection by the Ministry of Labour. The CUT refers, first, to an initial complaint that was submitted jointly with the Confederation of Workers of Colombia in 2012 to the Territorial Labour Directorate of Antioquia in relation to 20 associated labour cooperatives that had become trade unions and subsequently hired the workers under a union contract. The CUT states that the Ministry of Labour did not recognize the trade union confederations as parties and that, after conducting an ex-officio investigation decided to close it, finding that there was no violation of any labour rights. The CUT refers, second, to a complaint filed on 3 December 2014 against the company Leonisa S.A (hereafter the apparel company) for using a union contract for its cleaning work. The complainant states that six months after the filing of the complaint, no investigation had been officially launched.
7. 292. In the light of the above, the complainant organization calls for: (i) the Ministry of Labour to carry out a comprehensive investigation of the union contracts concluded in the country in order to ensure compliance with labour rights; (ii) the Ministry of Labour to initiate legal proceedings to dissolve any trade unions for which union contracts have been associated with the violation of the legal standards governing the establishment and functioning of trade union organizations; (iii) the Ministry of Labour to guarantee the participation of the CUT in the investigation as a party to the proceedings; and (iv) Colombian legislation regarding union contracts to be brought into line with ILO Conventions and, in particular, for sections 482, 483 and 484 of the Substantive Labour Code to be repealed.

B. The Government’s reply

1. 293. In a communication received on 22 June 2016, the Government includes, first, the comments of the Territorial Inspection, Supervision, Monitoring and Management Directorate of the Ministry of Labour (IVC Directorate). The IVC Directorate states that, given that the issue of union contracts is closely linked to that of illegal labour intermediation, the Ministry of Labour and its inspection and monitoring authorities have taken preventive and corrective actions regarding the rights of workers bound by union contracts. The IVC Directorate points out, in particular, that during the second half of 2015, various tripartite meetings were held with a view to establishing points of consensus based on which the Ministry of Labour could adopt a policy that could mitigate the possible adverse effects of union contracts on collective labour relations. During those meetings: (i) representatives of the General Confederation of Labour, one of the country’s main trade union confederations, described the actions taken by the Confederation to apply union contracts as part of the relations between enterprises and trade unions; (ii) it was found that union contracts promote the expansion of relations between employers and trade union organizations and make it possible to support enterprises’ economic relations and assist trade unions through their members; (iii) the representatives of the various sectors all warned that, in the last five years, union contracts had been used to evade regulations on labour formalization, becoming a new source of labour intermediation not authorized by the law and sidestepping the minimum guarantees relating to membership to the social security scheme, health and occupational risks. The IVC Directorate concludes that union contracts should be a source of social support for trade unions and that, while such contracts are a concept in collective labour law, they differ from collective bargaining in that they have different purposes. It adds that the aforementioned tripartite meetings highlighted that the misuse of union contracts can, in some cases, undermine the rights of workers and trade union organizations and that efforts will be made to create a tool to facilitate the work of inspection bodies in order to sanction the misuse of such contracts and to deter irregular intermediation practices by means of union contracts.
2. 294. The Government subsequently submits its own observations and states that the alleged violation of Conventions Nos 87 and 98 is not clear, given that it is trade union organizations that promote union contracts. It adds that the mandate and competence of the Committee on Freedom of Association are limited to violations of the Conventions on freedom of association and collective bargaining and do not extend to the other international labour Conventions on working conditions.
3. 295. The Government also states that a union contract is a legal concept, that section 373(3) of the Substantive Labour Code establishes that trade union organizations are responsible for the conclusion of collective agreements and union contracts and that section 482 of the Substantive Labour Code, regulated by Decree No. 1429 of 2010, defines union contracts as follows: “A union contract is understood to mean a contract that is concluded by one or more trade unions and one or more employers or employers’ organizations for the provision of services or the performance of a task by their members. A copy of the union contract must be submitted, without exception, to the Ministry of Labour no more than 15 days after it is signed. The duration, revision and expiry of the union contract are governed by the terms of the individual labour contract.”
4. 296. The Government also refers to its initiatives to combat illegal labour intermediation and adds in this respect that: (i) the Formalization and First Job Act of 2010 and its regulations prohibit the misuse of associated labour cooperatives or any other form of relationship that undermines labour rights; (ii) the monitoring of this Act by the Ministry of Labour resulted in a decrease in the number of associated labour cooperatives from 2,117 in 2010 to 277 in 2015; (iii) under the legislation in force, temporary employment agencies are the only enterprises authorized to conduct labour intermediation; (iv) Decree No. 583 of 2016 specifies that employers may conclude civil and commercial contracts to outsource their business activities, but they cannot do so in order to disregard labour rights.
5. 297. The Government adds that the rights of workers bound by union contracts are established by Decree No. 036 of 12 January 2016, which provides that: (i) the activity of workers who provide services under a union contract shall be regulated by sections 373, 482 and 483 of the Substantive Labour Code, by the present Decree, and by the provisions of the union contract and their respective regulations; (ii) the trade union signatory to the union contract is responsible for the fulfilment of the obligations arising from the contract, as well as the obligations established for the workers tasked with executing the contract; and (iii) should the trade union or the enterprise bound by the union contract be dissolved, the outstanding obligations to union members shall be considered first-class preferential debts.
6. 298. The Government also refers to the jurisprudence of the State Council and the Constitutional Court, which have confirmed the validity of union contracts, and draws attention to two Constitutional Court judgments (Judgments Nos T-303 and T-457 of 2011) which highlighted that: (i) in the framework of a union contract, a trade union resembles, but does not become, a non-profit employer; and (ii) the purpose of a union contract is to provide services or to perform tasks; the contract is carried out, not for profit, by a trade union through its members and in the exercise of freedom of association. Lastly, the Government indicates that the number of union contracts submitted per year rose from 50 in 2010 to 2,032 in 2015.
7. 299. In a second communication, received on 1 December 2017, the Government indicates that, in order to prevent union contracts from being used as illegal labour intermediation mechanisms, often as a substitute for associated labour cooperatives, Decree No. 036 of 2016 was issued to provide greater clarity on the following points: (i) determination of who are the union members bound by union contracts; (ii) authorization for the conclusion of union contracts; (iii) union liability; (iv) prior existence of the union and its members; and (v) guarantees of compliance and obligations of the contracting parties. The Government states that, following the entry into force of Decree No. 036 of 2016, the number of union contracts concluded dropped by 21 per cent between 2015 and 2016 and by 33 per cent when comparing the first eight months of 2017 to the same period in 2016. It adds that, while there are still challenges concerning labour inspections, actions to prevent and sanction illegal labour intermediation have been particularly important.
8. 300. With regard to the allegation that union contracts violate Conventions Nos 87 and 98, the Government reiterates that, under the Colombian Constitution, trade union organizations enjoy autonomy and are therefore free to conclude union contracts, in accordance with the law. Governments must therefore guarantee the independence of trade union organizations and protect the rights and guarantees arising from union contracts.
9. 301. Lastly, the Government attaches a decision of 21 April 2017, issued by the Ministry of Labour, relating to the complaint filed on 3 December 2014 against an apparel company and the trade union organization SINTRACONTEXA, in which the Ministry sanctions the company and the trade union with two fines of 4,000 monthly minimum wages each for illegal labour intermediation by means of a union contract, after finding that a subordinate employment relationship existed between the company and the union members.

C. The Committee’s conclusions

1. 302. The Committee observes that, in the present case, the complainant organization alleges that union contracts, a type of contractual arrangement established by Colombian legislation whereby one or more trade unions may agree to provide services or perform a task for one or more employers or employers’ organizations through their members, undermine the purpose and autonomy of trade union organizations, the right of workers to freedom of association and free and voluntary collective bargaining, thus violating various provisions of Conventions Nos 87 and 98, ratified by Colombia.
2. 303. The Committee notes the complainant organization’s indication that, as a result of various regulatory changes that occurred between 2010 and 2011 relating to the regulations applicable to the type of contractual arrangement that is the subject of the present complaint and to labour intermediation mechanisms in general, the use of union contracts has undergone exponential growth, with such contracts becoming illegal labour intermediation mechanisms that allow public and private employers to outsource their activities and avoid compliance with labour legislation. In this respect, the Committee notes that, with regard to the principles of freedom of association and collective bargaining, the complainant specifically alleges that: (i) union contracts alter and subvert union activity by giving the trade union an intermediation role in the employment relationship and the legal representative of the union the role of employer to union members; (ii) the characteristics of union contracts foster the establishment of fake trade union organizations that seek profit by means of such contracts; (iii) the workers concerned are deprived not only of many individual labour rights, but also of their rights to freedom of association and collective bargaining; and (iv) the Ministry of Labour has not conducted any type of inspection or monitoring of the trade union organizations and enterprises that have concluded union contracts.
3. 304. The Committee also notes that the Government, after emphasizing that the competence of the Committee on Freedom of Association does not extend to ILO Conventions other than those on freedom of association and collective bargaining, states that: (i) union contracts are a form of collective bargaining recognized by various provisions of the Substantive Labour Code, the purpose of which is to promote the expansion of relations between employers and trade union organizations and the validity of which has been confirmed by several judgments issued by the country’s high courts; (ii) in accordance with the principle of union autonomy, trade union organizations are responsible for deciding whether they wish to be linked to enterprises by means of union contracts; (iii) it is true that, in recent years, there have been many cases of misuse of union contracts and that such contracts have become a new source of illegal labour intermediation, often as a substitute for so-called associated labour cooperatives and as a way of avoiding various labour guarantees; (iv) however, with a view to preventing such misuse, Decree No. 036 of 2016 was adopted in an effort to provide greater clarity on the various aspects of the legal regime governing union contracts; and (v) while there are still challenges in this regard, actions to prevent and sanction illegal labour intermediation have been particularly important in recent years.
4. 305. With respect to the scope of its competence in this case, the Committee wishes to recall, first, that it has considered that it is not within its competence to reach a decision on violations of ILO Conventions on working conditions since such allegations do not concern freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 20 of Annex 1]. The Committee therefore emphasizes that it is not within its competence to reach a decision on the possible violation of labour rights other than the rights to freedom of association and collective bargaining, which could affect the workers bound by union contracts. At the same time, it is within the competence of the Committee to determine to what extent the regulation and application of union contracts comply with the principles of freedom of association and collective bargaining and whether or not they undermine the union rights and collective bargaining rights of workers and workers’ organizations.
5. 306. The Committee observes that the complainant’s allegations concerning freedom of association and collective bargaining refer primarily to the supposed alteration of union activity, resulting in the assumption by the trade union of all the employer obligations relating to the completion of the work established in the contract under examination. This would subvert the principles and purposes of trade unionism and deprive the workers concerned of their right to associate for the representation of their interests before the entity responsible for their employment, as well as their rights to collective bargaining and to strike. While noting the Government’s indication that union contracts are a legal form of collective bargaining to which many trade union organizations agree freely and voluntarily, the Committee considers it necessary to examine the characteristics of union contracts as defined by the national legislation in force, as well as the context of the labour relations in which the use of union contracts has arisen.
6. 307. The Committee observes that union contracts, which first appeared in Colombian legislation in 1945 and were scarcely used for several decades, have led, with a view to regulating their functioning and supplementing the general provisions of sections 373, 482, 483 and 484 of the Substantive Labour Code which define them, to the adoption since 2006 of three decrees (Decree No. 657 of 2006, Decree No. 1429 of 2010 repealing the previous Decree of 2006, and Decree No. 036 of 2016 establishing that union contracts shall be governed by the relevant sections of the Substantive Labour Code and by the content of the same Decree). The Committee observes that the relevant sections of the Substantive Labour Code and Decree No. 036 of 2016 establish that: (i) the signatories to a union contract are the user enterprise, on the one hand, and the legal representative of the trade union on the other; (ii) in exchange for a fee established in the union contract, the trade union agrees to perform a specific task for the enterprise; (iii) the trade union must make available to its member workers tasked with executing the union contract the instruments and materials necessary for the completion of the work established in the contract; (iv) the trade union is responsible for the fulfilment of all the legal obligations, as well as the obligations established for the members tasked with executing the union contract; (v) in particular, the union is responsible for compliance with the legal obligations relating to workers’ social security and for guaranteeing observance of the occupational safety and health scheme; (vi) the mutual obligations of the trade union and its members are established in regulations adopted by the union’s general assembly; (vii) these regulations determine, inter alia, how the trade union chooses, replaces and withdraws the members who will perform the tasks established in the union contract and how the coordinator responsible for the execution of the union contract is chosen; (viii) the regulations do not expressly establish any contractual link between the user enterprise and the union members who will perform the agreed task; (ix) they do however establish that, should the trade union be dissolved, the members who have been hired to execute the union contract shall continue to provide their services or perform the tasks under the conditions stipulated; and (x) Decree No. 036 of 2016 provides a series of additional rules relating to the decisions that must be taken by the trade union in relation to union contracts, which will be later examined.
7. 308. The Committee also observes that, when describing the concept and use of union contracts, both the complainant organization and the Government repeatedly refer to associated labour cooperatives and that both emphasize in this respect that: (i) the significant increase in the number of union contracts as of 2010 coincided with the adoption, following cases of misuse, of regulations that restricted the ability of associated labour cooperatives to carry out labour intermediation activities; and (ii) certain productive activities previously carried out by associated labour cooperatives for user enterprises began to be conducted by means of union contracts. The Committee recalls that during the 2000s, it received many complaints which alleged that associated labour cooperatives were being used to disguise what were in fact subordinate employment relationships and to prevent their workers from exercising their union membership and collective bargaining rights (see, in particular, Cases Nos 2237, 2362, 2448 and 2668). Mindful of the particular characteristics of cooperatives, the Committee considered that associated labour cooperatives (whose members are their own bosses) cannot be considered, in law or in fact, as “workers’ organizations” within the meaning of Convention No. 87, that is organizations that have as their objective to promote and defend workers’ interests. The Committee observes that, while they are based on two distinct concepts, associated labour cooperatives and union contracts have in common the non-recourse, at least formally, to subordinate employment relationships, the absence of a direct relationship between the workers and the user enterprise to which services are provided, and the completion of work in the framework of a collective structure in which it is presumed that the structure, with the participation of its members, decides on the working conditions.
8. 309. The Committee notes that it stems from the provisions described above that, in the framework of a union contract, the trade union is responsible not only for compliance with all the legal obligations relating to the work carried out by its members, but also for organizing and coordinating such work. Union contracts therefore diverge from the so-called union security clauses since, in the case under examination, the trade union organization not only ensures that all the workers serving an enterprise are members of the union, but is also directly responsible for the productive activity. The Committee notes, in particular, that as the trade union is responsible for choosing, replacing and withdrawing the members who will perform the tasks established in the union contract, the union would appear to have decision-making power over whether its members have access to and remain in employment. In this respect, the Committee notes the Government’s indication that both the State Council and the Constitutional Court (Judgments Nos T-303 and No. T-457 of 2011) have confirmed the validity of union contracts and have emphasized that: (i) “in the framework of a union contract, a trade union resembles, but does not become, a non-profit employer”; (ii) the purpose of a union contract is to provide services or to perform tasks; and (iii) the contract is carried out, not for profit, by a trade union through its members and in the exercise of freedom of association. The Committee also notes that the Government indicates that the number of union contracts submitted per year rose from 50 in 2010 to 2,032 in 2015.
9. 310. Highlighting the singularity of the contractual category under examination and the complexity of the issue, and recalling that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities [see Compilation, op. cit., para. 1188], the Committee considers that giving a trade union management and decision-making power over the employment of its members may endanger its ability to simultaneously assume the responsibility specific to trade union organizations, which is to support and defend, in an independent manner, their members’ rights vis-à-vis employment and working conditions, and therefore the ability, in this framework, of the workers to exercise their right to collective bargaining. The principle of freedom of association would imply that workers under such a union contract are free to join another union to defend their interests and benefit from the effective right of collective bargaining.
10. 311. In this respect, the Committee recalls that already in 2005, during a high-level tripartite visit carried out in the framework of the follow-up to the discussions of the Committee on the Application of Standards and the examination of Case No. 1787 by the Committee on Freedom of Association, the tripartite delegation expressed a number of concerns regarding the functioning of union contracts and their impact on union activity:
    • The trade union organizations that spoke to the members, however, expressed their serious concerns regarding the use of this type of contractual arrangement. The members of the visit had the opportunity to visit an enterprise in which a trade union contract was in operation. The presentation of this scheme gave rise to numerous questions and led the members to believe that an in-depth investigation of the subject was necessary in order to clarify certain issues such as the legal relationship between the enterprise and the union, the enterprise and the workers and the union and the workers; the responsibilities assumed by the union with respect to the enterprise and with respect to the workers; and the new role of the union. In order to assess correctly the implications of this contract, it would also be useful to have an idea of the number of such contracts in operation and the number of workers affected (para. 147 of the Mission report of the ILO high-level tripartite visit to Colombia, carried out from 24 to 29 October 2005, Appendix 5 to the interim report of the Committee on Freedom of Association, Case No. 1787, 340th Report of the Committee on Freedom of Association, March 2006).
11. 312. The Committee observes that, despite the regulation of union contracts by various decrees since 2006, it continues to have limited information both about the precise legal nature of the relationship between the trade union and its members in the framework of a union contract and about the practical functioning of this type of contractual arrangement. Moreover, while noting the Government’s indications regarding the provisions introduced by Decree No. 036 of 2016 which provide that the main decisions relating to a union contract shall be taken by the union’s general assembly and that the members participating in the contract shall be informed annually of its application, the Committee observes that it does not have any specific information on how, in the framework of a union contract, workers can exercise their right to collective bargaining and that it does not have the Government’s observations on the complainant organization’s allegations that a large number of union contracts prohibit the exercise of the right to strike and to freedom of expression in the user enterprises. The Committee therefore requests the Government to provide information, in consultation with the representative organizations of workers and employers on the impact of Decree No. 036 of 2016 and its practice on: (i) the nature of the individual and collective relations that exist, in the context of a union contract, between the trade union and its members as well as between the union members and the user enterprise; and (ii) the effective possibility of workers engaged in union contracts, both in law and practice, of being represented and defended by a trade union organization other than the entity exercising management and decision-making power over their employment and of being able to negotiate collectively, in an independent manner, their working conditions.
12. 313. With regard to the allegation that the characteristics of union contracts foster the establishment of fake trade union organizations that seek profit by means of such contracts, the Committee notes, first, that the complainant organization specifically alleges that: (i) the 1,796 union contracts concluded in 2014 were managed by a small number of organizations (104) that are in fact dedicated to supplying labour to the enterprises; (ii) 98.9 per cent of these contracts occurred in the health sector, and many of the so-called trade union organizations actually replaced associated labour cooperatives that had been, until the legislative reforms of 2010, the main source of illegal labour intermediation and had been particularly high in number in that sector; (iii) 41 per cent of the union contracts signed in 2014 required the workers to pay a fee to simply join the trade union, and the vast majority of contracts required the payment of higher than average union dues; (iv) the fact that enterprises may outsource and transfer all their labour responsibilities to a trade union organization fosters, in some cases, the establishment of trade unions by the enterprises themselves, in violation of Article 2 of Convention No. 98, which prohibits any interference by employers in the trade union movement; (v) the Ministry of Labour does not perform the necessary checks to verify whether union contracts are signed by real trade union organizations, does not take steps to request through the courts the cancellation of the registration of fake trade union organizations and fails to recognize the CUT as a party to the proceedings in the administrative labour complaints regarding this issue; and (vi) for example, the Ministry of Labour closed an investigation requested by the CUT concerning 20 associated labour cooperatives that had become trade unions so that they could sign union contracts and continue conducting their illegal labour intermediation activities. The Committee also notes that, for its part, the Government indicates that: (i) in order to prevent union contracts from being used as illegal labour intermediation mechanisms and to mitigate the possible adverse effects of union contracts on collective labour relations, various tripartite meetings were held in 2015 and Decree No. 036 was issued, establishing additional guarantees such as the requirement that a trade union must have been established at least six months prior to the signing of a union contract and that any contracts must be approved by the union’s general assembly; (ii) labour inspections to combat illegal labour intermediation have been important; (iii) this is demonstrated by the penalty imposed by the Ministry of Labour in April 2017 on an enterprise in the apparel sector and on a trade union organization that had used a union contract as an illegal form of labour intermediation, as there was a subordinate employment relationship between the enterprise and the union members; and (iv) since the entry into force of Decree No. 036 of 2016, the number of union contracts has significantly decreased.
13. 314. The Committee takes due note of the Government’s acknowledgement that union contracts have often been used as illegal labour intermediation mechanisms – especially as a substitute for associated labour cooperatives – and that this type of contractual arrangement could have had harmful effects on collective labour relations. The Committee also takes due note of the regulatory and monitoring actions referred to by the Government in this respect. The Committee notes at the same time that: (i) in spite of the significant decrease in the number of union contracts concluded between January 2016 and August 2017, the number of contracts (according to Government data, 1,675 contracts were signed in 2016 and 855 between January and August 2017) continues to be significantly higher than it was prior to the reforms of 2010 (50 contracts were signed in 2010), without there having been a denial of the complainant organization’s allegation that almost all union contracts occur in the health sector, which was previously characterized by a strong presence of associated labour cooperatives dedicated to labour intermediation; (ii) apart from the one penalty handed down to an enterprise and a trade union in the apparel sector, the Government has not provided consolidated data on the checks and inspections carried out specifically in relation to union contracts and has not provided any information on the grounds for closing an investigation relating to 20 associated labour cooperatives that, allegedly, had become trade union organizations so that they could sign union contracts; (iii) the Government has not commented on the alleged practice of making workers who join trade unions in order to participate in union contracts pay fees for joining the trade union as well as high union dues. In the light of the above, the Committee further requests the Government to provide information, in consultation with the representative organizations of workers and employers on the impact of Decree No. 036 of 2016 and its practice on: (i) the measures taken to prevent the misuse of union contracts, particularly by fake trade union organizations; and (ii) the effectiveness of the inspection and monitoring policy pursued by the Ministry of Labour with regard to union contracts.

The Committee’s recommendation

1. 315. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Highlighting the singularity of the contractual category under examination and the complexity of the issue, the Committee requests the Government to provide information, in consultation with the representative organizations of workers and employers on the impact of Decree No. 036 of 2016 and its practice on: (i) the nature of the individual and collective relations that exist, in the context of a union contract, between the trade union and its members as well as between the union members and the user enterprise; (ii) the effective possibility of workers engaged in union contracts, both in law and practice, of being represented and defended by a trade union organization other than the entity exercising management and decision-making power over their employment and of being able to negotiate collectively, in an independent manner, their working conditions; (iii) on the measures taken to prevent the misuse of union contracts, particularly by fake trade union organizations; and (iv) on the effectiveness of the inspection and monitoring policy pursued by the Ministry of Labour with regard to union contracts.