Informe provisional - Informe núm. 286, Marzo 1993

Caso núm. 1625 (Colombia) - Fecha de presentación de la queja:: 20-FEB-92 - Cerrado

1. 385. The complaint is contained in a communication from the Single Confederation of Workers of Colombia (CUT) dated 20 February 1992. The CUT sent new allegations in a communication dated 18 June 1992. The Government sent its observations in a communication dated 28 September 1992.
2. 386. Colombia has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 387. In its communication of 20 February 1992, the Single Confederation of Workers of Colombia (CUT) alleges that Act No. 50 of 1990 has generalized the practice of short-term labour contracts, and that, in the resulting total insecurity, the right to organize is no longer assured, since workers who do join trade unions run the risk of not having their contracts renewed. It also frequently happens that employers dismiss workers who exercise their right to trade union membership, as has occurred at the MULTIPLAST (40 dismissals), INDUNAL (45 dismissals) and WACKENHUT (70 dismissals) undertakings, put pressure on workers to leave their trade union, as happens in the GOOD YEAR company, or oblige workers to join trade unions which have links with their employer, as in the case of the San Carlos Sugar Mill in Tuluá (Valle).
2. 388. The complainant adds that the Government has, by virtue of Act No. 60 and the decrees providing for its enforcement (particularly Decree No. 1660 of 1991), and with the aim of reducing the number of public service employees, implemented "compensated retirement" programmes in many state bodies and public enterprises. These programmes, under which workers are required to choose between voluntary retirement with a financial compensation or dismissal with severance pay, have already affected or will affect many thousands of workers.
3. 389. As regards the right to strike, the complainant alleges that, contrary to the provisions of the new National Constitution, the Government assumes the right to decide which public services are essential, among which it includes the banking and financial sectors, health, social security, telecommunications, energy (including electricity), ports, transport, water supply and sewage, education, state services in general and even a number of hotels. On this basis, the Government has declared strikes in these sectors to be illegal, with the resulting dismissals.
4. 390. As regards the right to collective bargaining, the complainant indicates that where no agreement is reached in disputes occurring in the state sector, and in many cases in the private sector, the Government ends up by convening a court of mandatory arbitration. Likewise, in the public sector the right to collective bargaining is accorded to "official workers" (who have a contract of employment), but not to "public employees" (whose situation is governed by a statute), to whom the right to strike is also denied. Furthermore, Act No. 60 of 1990 establishes that no state body shall be able to make pay adjustments that exceed the level set by the Government. Thus, section 18 of Decree No. 2914 of 1991 establishes that "the legal representatives and governing boards or councils of state, industrial and commercial enterprises and of mixed economy companies that are subject to the regulations governing state, industrial and commercial enterprises shall be required, prior to concluding collective agreements envisaging wage increases higher than those decreed by the National Government for public service employees, to seek authorization from the Higher Council on Fiscal Policy (CONFIS) or the authority taking its place. ..." The complainant adds that when, exceptionally, a collective agreement is achieved, the Government modifies it, as occurred in the case of the state enterprise "Puertos de Colombia" where the Government, by virtue of Decree No. 35 of 1992, modified the clauses on pensions and retirement.
5. 391. In its communication of 18 June 1992, the complainant alleges that, contrary to article 56 of the National Constitution, consultation is not used as a mechanism for solving disputes, and requests technical advice from the ILO in discussion of the draft Labour Statute presented to the Congress of the Republic.

B. The Government's reply

1. 392. In its communication of 28 September 1992, the Government states that the explanatory introduction to Act No. 50 of 1990 gives as the main reason for the Act the need to adapt the labour market to the policy of openness and reorganization in the production system. This implies the adoption of new and up-to-date labour legislation that is conducive to economic recovery and which provides a stimulus to capital investment and producers in the main sectors of the economy, such as industry, services, commerce and agriculture.
2. 393. The Government adds that the labour reform includes a number of critical issues in the areas of individual and collective rights, taking into account primarily the international agreements ratified by the National Government with the aim of bringing about fundamental changes in worker-employer relations. The Government states that the changes introduced cannot be to the detriment of workers, the objective being not only to protect acquired rights, but also to improve labour relations through rationalizing institutions to facilitate labour stability, fostering the establishment of new production units and stimulating the generation of productive employment on a large scale.
3. 394. The Government likewise states that it has respected the provisions of the National Constitution of 1991, particularly where the rights and freedoms of workers are concerned, on each occasion on which it has played a part in resolving labour disputes at the national and regional levels (as illustrated by the case of Avianca, in which the Ministry of Labour intervened directly in the negotiations and obtained a suspension of the collective dismissal procedure). In those cases in which the law so provides, the convening of courts of arbitration has been effected within the framework of the law. As regards the plans concerning compensated retirement in the public sector envisaged by Decree No. 1660 of 1991 the Government adds that the said decree (which provided for the enforcement of Act No. 60 of 1990), was ruled unconstitutional on 13 August 1992.

C. The Committee's conclusions

1. 395. The Committee takes note of the Government's statements on short-term contracts of employment and their alleged generalization as a result of Act No. 50 and on the thousands of jobs allegedly lost as a consequence of Act No. 60 and the Decrees providing for its enforcement (particularly Decree No. 1660), which have given and will continue to give rise to rationalization programmes in the public sector. The Committee notes in particular that, according to the Government, Act No. 50 seeks to revive the economy, investment and the generation of employment, and that Decree No. 1660 has recently been declared unconstitutional.
2. 396. The Committee is aware that contraction of the public sector and/or a greater employment flexibility, do not in themselves constitute violations of the freedom to associate. However, there is no doubt that these changes have significant consequences in the social and trade union spheres, particularly in view of the increased job insecurity to which they can give rise. The Committee is therefore of the view that employers' and workers' organizations should be consulted as to the scope and form of the measures adopted by the authorities.
3. 397. The Committee therefore invites the Government to take the necessary steps to ensure that, within the framework of the standing tripartite commission foreseen by the new National Constitution (article 56), discussions be initiated with the social partners aimed in particular at ensuring that the Government's restructuring policies do not have detrimental consequences for the exercise of trade union rights.
4. 398. Finally, the Committee regrets that the Government has not provided a detailed reply to the other allegations (anti-union dismissals and interference; restrictive regulations and practices in relation to strikes, collective bargaining and mandatory arbitration; submission of collective bargaining in the public sector to the Government's economic policy; and especially the modification by decree in the enterprise Puertos de Colombia of a collective agreement). The Committee requests the Government to reply to these allegations without delay.

The Committee's recommendations

1. 399. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the Government to act as necessary to ensure that discussions are initiated with the social partners aimed in particular at ensuring that the Government's restructuring policies do not have detrimental consequences for the exercise of trade union rights.
   • (b) The Committee regrets that the Government has not provided a detailed reply to the other allegations (anti-union dismissals and interference; restrictive regulations and practices in relation to strikes, collective bargaining and mandatory arbitration; submission of collective bargaining in the public sector to the Government's economic policy; and in particular, amendment by decree of a collective agreement in the enterprise Puertos de Colombia). The Committee requests the Government to reply to these allegations without delay.