Texts of pending comments

The Committee notes the reports provided by the Government on the application of Conventions Nos 22 and 23 on seafarers. The Committee also notes the observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), received on 1 September 2019. In these observations, the CTC and CUT recommend the ratification of the Maritime Labour Convention, 2006, as amended (MLC, 2006) to resolve the problems faced by seafarers in the absence of an instrument that protects them at the national and international levels. They also indicate that this view is shared by the General Maritime Directorate (DIMAR) of Colombia. The Committee also notes the Government’s indication that, in the context of the discussion on reports on the maritime Conventions held at the Tripartite Subcommittee on International Labour Affairs, it was agreed to request the technical assistance of the Office in relation to the possible ratification of the MLC, 2006. The Committee understands that the Office is in contact with the Government to provide the technical assistance requested. The Committee requests the Government to provide information on any developments in this regard. In order to provide an overview of the issues to be addressed in relation to the application of Conventions on seafarers, the Committee considers it appropriate to examine these instruments in a single comment, as set out below.

Seamen’s Articles of Agreement Convention, 1926 (No. 22)

Article 3 of the Convention. Conditions and guarantees for the signing of the agreement. In its previous comments, the Committee requested the Government to provide information on the measures adopted to give effect to Article 3(1) and (2) of the Convention. The Committee notes with interest the Government’s indication in this regard that Decree No. 1015 of 16 June 1995, as compiled by Single Regulatory Decree No. 1072 of 2015 of the Ministry of Labour, in Chapter 3 on labour regulations concerning certain employees on board ships flying the Colombian flag in international service, section 2.2.1.6.3.2, establishes that facilities shall be provided to the worker and his advisers to examine the articles of agreement before they are signed. The Committee notes this information which corresponds to the request made previously.

The Committee previously requested the Government to provide its comments regarding the observations of the CUT that most seafarers are recruited under verbal agreements and, in some cases where they sign contracts, they are not provided with a copy. The Committee notes that the Government refers to section 2.2.1.6.3.14 of the Single Decree referred to above, which provides that the labour administration authorities, within their function of monitoring labour standards, shall enforce compliance with Convention No. 22 of the International Labour Organization approved by Act No. 129 of 1931 and the regulations set forth in this Chapter. The Government also provides information on the administrative actions taken in this context between 2014 and 30 March 2019. The Committee notes this information.

Repatriation of Seamen Convention, 1926 (No. 23)

Articles 3 and 6 of the Convention. Obligations pertaining to repatriation. The Committee previously requested the Government to provide its comments on the observations of the CUT regarding the ongoing problems relating to the repatriation of seafarers due to the Government’s lack of clear authority as the head of DIMAR to protect and ensure the repatriation of seafarers, whether they are foreign nationals in Colombia or Colombian nationals abroad. The Committee notes the Government’s indication that DIMAR prepared and made available to the Ministry of Labour the necessary technical assistance for the adoption of the draft decree adding to and amending Book 1, Part 1, Title 1, Chapter 6, section 3 of the Single Regulatory Decree 1072 of 2015 of the labour administration and issuing other provisions. The Government adds in this regard that this draft addresses, among other matters, the issue of repatriation. The Committee requests the Government to provide information on the development of the draft decree referred to above.

Article 1 of the Convention. Peoples covered by the Convention. Self-identification. In its previous comments, the Committee noted that the Directorate for Indigenous, Roma and Minorities Affairs (DAIRM) was responsible for keeping the registry of peoples covered by the Convention. The Committee requested the Government to provide information on this matter and on the self-censuses of indigenous peoples. In its report, the Government states that, from 2013 to September 2018, a total of 3,416 censuses have been uploaded into Colombia's indigenous information system. The Government indicates that, in September 2014, the DAIRM issued a circular with instructions for indigenous authorities and/or councils on carrying out censuses. The DAIRM defines the indigenous self-census as an autonomous exercise carried out by indigenous authorities through census lists in order to establish the social composition of their communities, and the periodical developments on account of births, deaths, migration and marriages. In this process, the governing council of each reservation and community or group is responsible for the self-census and its supervision. The Committee requests the Government to provide updated statistical data on the number of persons belonging to peoples covered by the Convention, disaggregated by sex, age, people and geographical location, as well as examples of self-censuses, indicating how they are used. The Committee refers to its general comment of 2018 in which it reiterated the importance of having reliable statistical data on the peoples covered by the Convention, including on their socio-economic conditions, as a tool for effectively guiding and defining public policies, and encourages the Government to provide information in this regard.

Article 4. Protection of the rights of indigenous peoples in isolation. The Committee notes with interest the adoption of Decree No. 1232 of 17 July 2018 establishing the National System for the prevention and protection of the rights of indigenous peoples living in isolation or natural conditions. The objectives of the system include developing and implementing measures to protect the rights of peoples in living isolation, by ensuring the participation of indigenous peoples in surrounding areas, and strengthening the competent public institutions. Under the system, the National Committee for the prevention and protection of the rights of indigenous peoples living in isolation has been established, whose objective is to guide the development of strategies for the planning and management of the system and which is composed of various governmental department employees, indigenous members of the Standing Dialogue Forum and indigenous representatives of civil society organizations. The Committee requests the Government to provide information on the protective measures adopted by the National System for the prevention and protection of the rights of indigenous peoples living in isolation, indicating how it ensures that such a system has the means and resources necessary to achieve its objectives.

Article 7. Development. The Committee notes the adoption of Act No. 1955 of May 2019, which sets out the National Development Plan 2018–2022, “Pact for Colombia, Pact for Equity”. The Plan aims to lay the foundations of legality, entrepreneurship and equity for the achievement of equal opportunities for all Colombians. The Plan consists of public policy objectives known as “pacts”, including the Pact for equality of opportunity among indigenous, Black, Afro-descendant, Raizal, Palenquero and Roma groups. According to information from the National Planning Department, the objectives of the Pact are to increase comprehensive care for children of ethnic origin, from early childhood to adolescence; improve access and health outcomes for ethnic groups through an intercultural approach; and narrow the gap in their access to basic services. The Committee requests the Government to provide information on the measures taken within the framework of the Pact for equality of opportunity among indigenous, Black, Afro-descendant, Raizal, Palenquero and Roma groups and on any evaluations conducted on the impact of the measures. In this regard, the Committee requests the Government to clarify the manner in which the peoples covered by the Convention have participated in the development, implementation and evaluation of these measures.

Articles 5 and 7. Protection of cultural values and practices. Raizal fishers. The Committee recalls that, for some years now, it has been addressing the situation of Raizal small-scale fishers in the Department of San Andrés, Providencia and Santa Catalina, referring to the constraints they have faced in the exercise of their traditional fishing activities. In its previous observation, the Committee noted the Government’s initiative to prepare a Statute for the Raizal people and requested the Government to continue providing information on the measures taken to improve the conditions of life and work of the Raizal people. The Government reports that, within the context of a prior consultation process, the Bill, through which the rights of the Raizal ethnic people of the Archipelago of San Andrés, Providencia and Santa Catalina are recognized under the Statute for the Raizal people, has been finalized and submitted to the Senate for approval. Under the Bill, the right is recognized of the Raizal people to prior consultation and participation in the design, development and evaluation of environmental, socio-economic and cultural impact studies on projects likely to affect them directly. The Bill also provides for the establishment of the Forum for discussion and cooperation of the Raizal people as a body for dialogue with the Government. The Government also reports the development of a special plan for safeguarding ancestral knowledge and skills, and Raizal cultural practices relating to their coexistence with the sea, 2016, as a result of a participative process with the Raizal people. The Committee welcomes the progress made in developing the Statute for the Raizal people and trusts that the Government will take the necessary measures to adopt and implement the Act, through which the rights of the Raizal ethnic people of the Archipelago of San Andrés, Providencia and Santa Catalina are recognized under the Statute for the Raizal people, in cooperation with the indigenous peoples concerned. The Committee requests the Government to provide information on this subject, as well as on the implementation in practice of the special plan for safeguarding the ancestral knowledge of the Raizal people, indicating how the plan has contributed to the improvement of the conditions of life of the Raizal people and the protection of their traditional fishing activities.

Articles 6 and 15(1) Consultation. Legislative measures on the use of natural resources. In its previous comments, the Committee noted the consultations on draft legislative texts at the national level held through the Standing Dialogue Forum with indigenous peoples and organizations, and requested the Government to continue providing information on the outcome of those consultations. The Committee notes the list provided by the Government of draft legislative texts which were submitted for consultation between 2010 and 2018 to the Standing Dialogue Forum. These drafts include the proposal for a decree establishing and recognizing the competencies of the indigenous territories’ authorities with respect to the administration and preservation of natural resources and the environment. The Committee also notes the adoption of Decree No. 1372 of 2 August 2018, establishing a national space for prior consultation with the Black, Afro-Colombian, Raizal and Palenquero communities, which aims to serve as a forum for dialogue with the Government to advance the various stages of prior consultation on general legislative and administrative measures. The Government indicates that two prior-agreements have been reached through this forum with the Black, Raizal and Palenquero communities on the regulation process of Chapter IV of Act No. 70 of 1993, on transitory article 55 of the Political Constitution of Colombia, referring to the use of land and protection of natural resources, and the environment of the Black communities of the Pacific. The Committee requests the Government to report on the laws adopted following consultation with the peoples covered by the Convention, with examples of how those peoples have been able to influence the legislative texts adopted and how their proposals have been taken into consideration. In this connection, the Committee also requests the Government to provide information on the agreements reached, within the consultation process, and draft legislative texts regulating the use of natural resources by indigenous and Afro-descendant communities.

Articles 7 and 15. Natural resources. Impact studies of mining activities. In its previous comments, the Committee referred to the Mandé Norte and La Toma mining projects and noted that the Ministry of the Environment was undertaking environmental impact studies of mining activities in the indigenous communities in the reservations concerned. In this regard, the Government indicates that there are currently no records of procedures or granting of environmental licences related to the development of this project. In relation to the La Toma project, the Government indicates that the Ministry of Mines and Energy led the consultation process with the communities concerned. The Committee requests the Government to continue providing information on the mining projects that have been approved following a consultation process with the peoples concerned, indicating also how the outcome of environmental, social and cultural impact studies, undertaken with the participation of those peoples, have been considered fundamental criteria for carrying out such mining projects. Referring to its 2015 direct request, the Committee trusts that the necessary measures will be taken to ensure access to natural sources of water of the communities of Guajira.

The Committee further notes that the United Nations High Commissioner for Human Rights, in her report for Colombia, refers to violations of the right to health of indigenous peoples owing to the pollution of rivers used by these peoples as a result of mining activities (A/HRC/40/3/Add.3 of 4 February 2019, paragraph 62). The Committee also requests the Government to report on the measures adopted to protect the environment, including rivers, of the territories inhabited by the peoples covered by the Convention and of those where mining activities are carried out.

Articles 14, 17 and 19. Lands. The Committee notes the Government’s indication regarding the establishment of the National Land Agency (ANT), through Decree No. 2363 of 2015, replacing the Colombian Institute of Rural Development. The functions of the ANT include promoting the training of ethnic communities on managing the formalization and regularization of property rights; and agreeing and implementing, with these communities, the assistance plans that cover collective land titling programmes; the establishment, expansion, delineation and restructuring of indigenous reservations; acquisition and expropriation of land; and improvements.

In its previous comments, the Committee noted the measures adopted for the restitution of the ancestral lands of the Nasa indigenous communities of northern Cauca and the Afro-Colombian communities of Curvaradó and Jiguamiandó, and requested the Government to continue providing information on the restitution processes, as well as on the activities undertaken to ensure the personal and cultural integrity of these communities. In its reply, the Government indicates that between 1993 and 2016, seven reservations were established and six have been expanded for these peoples, benefiting 8,239 families over a total area of 35,849 hectares. With respect to the Curvaradó and Jiguamiandó communities, the Government reports that of the 156 plots of land that were separated from the collective titles of Curvaradó and Jiguamiandó, the ANT only received ten voluntary offers from the landowners. The ANT has made arrangements for the acquisition of the ten plots of land within the framework of the delineation of the collective territory of these communities. In relation to the other plots, visits have been carried out to verify the security of the area and actions have been taken for the re-housing of properties, which have been suspended due to the lack of minimum security conditions. The Committee also notes that the Government has implemented programmes to promote rural development for indigenous and Afro-descendant communities at the national level, and in particular for displaced families and voluntary returnees.

The Committee notes that, in their joint observations, the Confederation of Workers of Colombia and the Single Confederation of Workers of Colombia provide information on land claims, such as the case recognizing the ancestral lands of the Barí people, and express their concern at the ongoing conflicts over land between indigenous communities and non-indigenous people from rural areas. The trade unions consider that the problem concerning the recognition of ancestral lands stems from the superposition of multiple legal systems that creates conflicts between indigenous and rural peoples. The Committee also notes that the 2018 report of the Attorney General’s Office, entitled “Systematic violence against territorial rights defenders in Colombia”, states that State institutional weakness, at both legal and structural levels, in the constitutional protection of the territories of indigenous peoples and of Black, Afro-Colombian, Raizal and Palenquero communities, has generated long-term conflicts, fuelled by violent interactions over the years.

The Committee requests the Government to provide updated and detailed information on the activities of the National Land Agency relating to progress in land restitution processes for indigenous and Afro-descendant communities, in particular those who were displaced during the armed conflict, indicating the number and names of the beneficiary communities. It requests the Government to indicate the means and financial resources available to the ANT and other bodies responsible for resolving land restitution claims, and the conflicts generated in this respect. The Committee requests the Government to intensify its efforts to resolve the remaining land conflicts between indigenous communities and non-indigenous persons and to provide information on this matter.

Articles 20 to 22. Conditions of employment. Vocational training. The Committee notes that the Government, through the Directorate for the generation and protection of employment and family allowance of the Ministry of Labour, has identified various barriers to the integration of ethnic groups into the labour market, including a lack of awareness of their community skills, lack of procedures to strengthen their organizational processes from a commercial perspective, lack of basic and secondary education, and lack of knowledge of Spanish. The Government indicates that both the National System for victim support and reparation and the Standing Dialogue Forum with indigenous peoples and organizations seek to encourage differentiated active employment policies. The Committee also notes that, in its concluding observations, the United Nations Committee on Migrant Workers emphasized that the indigenous population on the border between Colombia and the Bolivarian Republic of Venezuela, particularly the Yukpa, and Wayuu peoples, and the Warao cross-border community, are in a situation of vulnerability and face threats of abuse, forced labour and slavery (CMW/C/COL/CO/3 of 13 September 2019, paragraph 52). The Committee requests the Government to take measures to strengthen the vocational, occupational and commercial skills of indigenous peoples to promote their integration into the labour market. The Committee also requests the Government to indicate the measures taken to ensure that the labour inspectorate can carry out its activities in border areas with a high concentration of indigenous migrant workers, in order to monitor their working conditions.

Articles 24 and 25. Social security and health. The Committee notes the Government’s indication that the Ministry of Health and Social Welfare has been taking steps to guarantee that ethnic groups are covered by the General Health and Social Security Scheme (SGSSS). The Government indicates that it is the obligation of health providers and public hospitals to deliver care to ethnic groups not affiliated with the SGSSS and not able to pay. It indicates that affirmative actions have been taken through the inclusion of the indigenous population in the SGSSS’s subsidized branch and that the funds for the subsidies for this population are channelled by the State through the mayor’s offices to the bodies promoting indigenous health. The Committee notes the detailed information provided by the Government on the manner in which ethnic groups participate in the SGSSS and the specific actions carried out by the Ministry of Health and Social Welfare with the indigenous, Afro-descendant and Roma populations. It also notes that the healthcare sub-committee of the Standing Dialogue Forum with indigenous peoples and organizations has been working on structuring the independent and intercultural indigenous health system. The Committee requests the Government to continue providing information on the progress made in expanding the social security regime to indigenous peoples, specifying the number of persons belonging to the peoples covered by the Convention who are under the subsidized scheme. The Committee also requests the Government to report on the progress made in structuring the independent and intercultural indigenous health system, indicating how the cooperation of indigenous peoples in the administration and organization of health services is guaranteed.

Part VI. Education. The Committee notes the Government’s indication that the Ministry of National Education has collaborated with national indigenous organizations in the development of the independent indigenous education system, for which the Standing Concertation Forum adopted methodology for the consolidation of a draft standard on the subject. The Committee notes that the report of the Coordinating Body of Indigenous Organizations in the Amazon Basin (COICA) indicates that, despite the significant autonomy granted to the indigenous authorities in the management of their educational policies, the Government retains the competence for coordinating curricular and pedagogical principles at all levels of education. The Government points out that it has also been consolidating the educational policy for the Black, Afro-Colombian, Raizal and Palenquero populations within the National Pedagogical Commission. Within the context of a differential approach in national education, the Government indicates that between 2007 and 2017 it signed approximately 292 agreements with indigenous organizations and 42 agreements with community organizations and councils of Black, Afro-Colombian, Raizal and Palenquero communities for the development of ethnic group-based educational projects. The Government reports on the implementation of a training plan for community teachers with an intercultural approach and on progress in the development of a training plan for translators and interpreters in native languages and Spanish. The Government also indicates that it has developed the Higher Education Inclusion Index as a tool that enables higher education institutions to recognize the manner in which they manage the diversity of their students. In addition, in order to ensure that Black, Afro-Colombian, Raizal and Palenquero populations access and remain in higher education, the Government has launched the Black Communities Fund, which has benefited a total of 294 students from the departments of Chocó, Valle, Cauca, Nariño, Atlántico and Bolívar, the majority of whom are women of African descent. The Committee requests the Government to continue providing information on progress in the development and establishment of an intercultural education system, indicating how this is coordinated with the general national education system, and how cooperation is facilitated with the peoples covered by the Convention in the development and implementation of study programmes. The Committee also requests the Government to continue providing updated data on the number of students enrolled in programmes designed to promote access to and retention of members of indigenous peoples and persons of African descent in higher education institutions.

The Committee notes the joint observations of the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI) received on 31 August 2018, which highlight and welcome the Government’s efforts towards the implementation of the Convention. The Committee also notes the observations of the IOE, received on 2 September 2019.

The Committee also notes the observations of the Workers’ Trade Union Confederation of the Oil Industry (USO) received on 1 September 2017; the joint observations of the Single Confederation of Workers of Colombia (CUT), the Colombian Federation of Education Workers (FECODE) and the Teachers’ Association of Cundinamarca (ADEC) received on 30 May 2018; and the joint observations of the Confederation of Workers of Colombia (CTC) and the CUT received on 1 September 2018. The Committee notes the Government’s reply to the joint observations of the CTC and CUT, and to the observations of the ANDI and IOE, received on 23 November 2018, and to the joint observations of the CUT, FECODE and ADEC, received on 20 May 2019.

The Committee also notes the observations of the General Confederation of Workers of Peru (CGTP) received on 23 March 2017, which include the report of the Coordinating Body of Indigenous Organizations in the Amazon Basin (COICA) on the application of the Convention in various countries.

Articles 2, 3 and 33 of the Convention. Restoration of peace. Human rights. Reparations. The Committee notes the Final Agreement for the end of the conflict and the building of stable and lasting peace signed by the Government and the Revolutionary Armed Forces of Colombia on 24 November 2016, and the corresponding Framework Plan for its implementation. The Committee welcomes the inclusion, in the Agreement, of a chapter on ethnic groups, which establishes that the interpretation and implementation of the Agreement shall take into account the principles of participation and consultation, identity and cultural integrity and the rights of ethnic peoples over their land. The Committee notes that the Framework Plan for the implementation of the Agreement contains specific targets and indicators for indigenous peoples, persons of African descent, and Raizal, Palenquero and Roma peoples, which were determined in consultation with the Government and the special high-level body for ethnic peoples. The targets include the delineation and protection of collective lands, the participation of the peoples concerned in the comprehensive rural reform, and the promotion of the participation and leadership of indigenous and Roma women and women of African descent.

The Committee notes that the Unit for comprehensive victim support and reparation is the entity responsible for registering individual or collective victims, and in implementing support, assistance and reparation measures. The Unit houses the Ethnic Affairs Directorate, whose function is to coordinate the comprehensive support and reparation actions for indigenous peoples and communities, the Roma people and the Black, Afro-Colombian, Raizal and Palenquero communities. The Government indicates that any person or authorized spokespersons of the communities can report violations of their rights in the context of the armed conflict to the offices of the State Prosecutor, following which the Unit reviews these reports in order to determine whether the victims will be registered. The Government adds that collective reparation plans incorporate the stages of identification, registration, enlistment and assessment of the damage, drawing up the reparations plan, implementation and follow-up. According to information from the Unit for comprehensive victim support and reparation, the number of collective victims from ethnic groups as of February 2018 was 390; while in October 2019 there were 227,686 individual victims from indigenous peoples, 792,540 identified as Afro-Colombian, 19,317 as Roma, 10,048 as Raizal and 2,731 as Palenquero people. The Committee notes the Government’s indication that the Committee for follow-up and monitoring the implementation of Decree Laws Nos 4633, 4634 and 4635 of 2011 on comprehensive reparation measures and restitution of territorial rights of collective victims belonging to indigenous peoples, Roma or Gypsy peoples, and the Black, Afro-Colombian, Raizal and Palanquero communities, respectively, set out, in its five reports submitted to Congress, its concern at the significant delay in the implementation of collective reparations for ethnic groups. In this regard, the Committee notes that, in their joint observations, the CUT and the CTC also refer to the shortcomings in the implementation of collective reparations mechanisms for indigenous communities.

In its previous comments, the Committee noted the ethnic safeguard plans for the indigenous peoples who have faced threats to their life and culture owing to the armed conflict, which had been issued by the Constitutional Court in its ruling No. 004 of 2009. The Committee requested the Government to provide information on the implementation and impact of those plans. In this respect, the Government reports that in 2017 there were 39 ethnic safeguard plans, of which 78 per cent have passed the self-assessment stage with the peoples concerned, 62 per cent have passed the concertation stage and 46 per cent are in the implementation stage.

The Committee notes that, in its 2019 report on the situation of human rights in Colombia, the United Nations High Commissioner for Human Rights noted with concern the high number of killings of human rights defenders of indigenous and Afro-Colombian persons primarily in Antioquia, Cauca and Norte de Santander (A/HRC/40/3/Add. 3 of 4 February 2019, paragraphs 15–17). The Committee also observes that the 2018 report of the State Prosecutor, entitled “Systemic violence against territorial rights defenders in Colombia”, analyses the interplay of violence against land rights defenders and their actions to defend their land rights. The report indicates that between January 2016 and March 2017, 156 murders of social campaigners, community leaders and human rights defenders were registered, at least 25 per cent of whom were leaders of indigenous peoples and communities. The Committee notes that, in its observations, USO refers in general to threats and acts of violence faced by the indigenous communities (Chidima Tolo and Pescadito) in the northern part of the Chocó region owing to the presence and actions of armed groups on their lands. It also refers to limitations to their right to movement inside and outside of their territory, and to the existence of anti-personnel mines and explosives, which amounts to a high-risk situation for members of the communities.

The Committee encourages the Government to continue to take actions for the restoration of peace that may contribute to the cessation of violence, the inclusion of members of the peoples covered by the Convention in the economic and social development of the country, and the full exercise of their human and collective rights. The Committee urges the Government to take appropriate measures to investigate the causes, establish responsibility and punish the perpetrators and instigators of the murders of indigenous rights defenders and acts of violence, and to guarantee the physical integrity and access to justice of the peoples covered by the Convention who continue to be victims of the conflict.

The Committee recalls that the Convention is an instrument that seeks to contribute to sustainable and inclusive peace and requests the Government to provide information on the manner in which the peoples covered by the Convention participate in the implementation of the Peace Agreement in all aspects that concern them. The Committee also requests the Government to intensify its efforts to ensure the implementation, without delay, of the collective reparations plans and ethnic safeguard plans, and provide detailed and updated information on progress in this regard, indicating the manner in which the peoples covered by the Convention have participated in the evaluation of the implementation and sustainability of the measures taken to this end.

Articles 6, 7 and 15. Consultation. Development projects. In its previous observation, the Committee noted the Presidential Directive No. 10 of 2013, containing the Guide on holding prior consultations with ethnic communities; as well as the document approved in 2013 by the National Economic and Social Policy Council, namely the Conpes Document No. 3762, which sets out the main features for the development of projects of national and strategic interest and, according to the Government, seeks to improve the exercise of the right to prior consultation. The Committee requested the Government to report on the functioning of those mechanisms and on the manner in which the participation of ethnic peoples covered by the Convention is ensured in the benefits accruing from such activities. The Government indicates that, between 2013 and 2018, 6,243 prior consultation processes were carried out, of which 18 per cent regarded activities in the hydrocarbons sector, 10 per cent in the environmental sector, 9 per cent in infrastructure and telecommunications, 7 per cent in mining and 6 per cent in electricity. The Government indicates that the Directorate for Prior Consultation of the Ministry of the Interior takes into consideration the principles developed by the Constitutional Court in its decisions regarding consultation, particularly as they relate to mining or port projects and infrastructure works, and provides examples of the way in which these principles of jurisprudence have been applied in prior consultations held with the different communities.

With respect to the identification of the communities to be consulted, the Government reports that the process to certify the presence or otherwise of ethnic communities in the area that will be affected by a project, works or activities is initiated by an application from the persons concerned, which is examined by the Directorate for Prior Consultation of the Ministry of the Interior to determine whether the information provided by the applicant is sufficient to continue with the certification process. This information is compared with the information contained in the cartographic databases of indigenous reservations and community councils; the databases of the Directorate for Indigenous Affairs and Roma Communities and the Directorate for Black, Raizal and Palenquero communities; the database for prior consultation; and the information on applications for collective land titling by indigenous and Black communities from the National Land Agency. The Government specifies that, where there is uncertainty in determining the presence of an ethnic community within the area of interest of the projects, works or activities, a visit is planned to verify the situation.

The Committee notes that, in its observations, the IOE indicates that the lack of clear rules for the development of the processes of prior consultation is a concern for the ANDI. The ANDI considers that despite the extensive jurisprudence of the Constitutional Court on the matter, there is no legislation that establishes basic guidelines in relation to the stages of prior consultation process, its duration, costs rights and obligations of the parties involved in the process and a closing mechanism. Therefore, the ANDI, the lack of clear rules in prior consultation processes becomes the main difficulty to advance investments in the country.

The Committee notes all of this information and, with reference to its previous observation, once again requests the Government to indicate whether Presidential Directive No. 10 and the Conpes Document No. 3762 are still applied and, if so, to provide information in this respect. The Committee requests the Government to continue providing information on the progress towards the adoption of regulations for prior consultation relating to projects undertaken on land belonging to peoples covered by the Convention, with an indication of the measures taken to ensure that full and informed consultations are held with the peoples concerned. It also requests the Government to indicate which mechanisms are in place to ensure the participation of those peoples in the benefits accruing from such activities.

The Committee also notes that ruling No. SU 123 de 2018 of the Constitutional Court, which compiles the Court’s jurisprudence on prior consultation, states that prior consultation is imperative “when there is reasonable evidence that a measure is likely to directly affect an indigenous people or a community of African descent”. The Committee recalls that Article 15(2) of the Convention sets out that the aim of the consultation is to ascertain whether and to what degree the interests of the peoples concerned would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. The Convention does not set forth evidence of a possible impact as a condition for consultation. In this connection, the Committee requests the Government to adopt measures to ensure that, in practice, the scope of the obligation of consultation is not reduced, by requiring evidence that the measure is likely to affect the indigenous peoples. Considering that Article 15(2) establishes the obligation to ascertain whether and to what degree the interest of these peoples would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands, the Committee trusts that the judicial interpretation be read and applied in this sense.

Fees for holding prior consultation. The Committee notes that, in its ruling No. SU123 de 2018, the Constitutional Court ordered Congress and the Government to take measures to establish a robust institutional framework for the issuance of certificates regarding the presence of ethnic groups in areas affected by projects, works and activities that balances between the right to consultation of the ethnic groups with the legal certainty of the investors. It notes in this respect that section 161 of Act No. 1955 of 2019 establishes the fee for holding prior consultation, which must be paid to the Ministry of the Interior by the party organizing the prior consultation and must cover the costs of the fees of the officials who devise the methodology, preconsultation and consultation, including travel expenses. The Act also provides for related costs and access to information on the presence of communities. The Committee recalls that in its general observation of 2018 it highlighted that it is incumbent upon governments to establish appropriate mechanisms for consultation at the national level and that public authorities must undertake consultations, without interference, in a manner appropriate to the circumstances. The Committee requests the Government to provide information and examples of the application in practice of the fees for holding prior consultation, with an indication of whether this has affected the effective implementation of consultation processes with the peoples covered by the Convention.

The Committee notes the observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE), received on 31 August 2018, in which they place emphasis on the measures adopted in recent years to protect and extend the rights of men and women domestic workers. The Committee also notes the observations of the Confederation of Workers of Colombia (CTC), the Single Confederation of Workers of Colombia (CUT) and the General Confederation of Labour (CGT), received on 1 September 2018, and the Government’s response, received on 19 November 2018. The Committee requests the Government to provide its comments on the observations of the ANDI and the IOE.

Article 3(1), (2)(a) and (3) of the Convention. Freedom of association and collective bargaining. In reply to the Committee’s previous comments, the Government reiterates that the guarantees of the exercise of the fundamental rights of freedom of association and collective bargaining recognized in articles 39 and 55 of the Political Constitution apply to domestic workers under the same conditions as to other workers. The Government indicates that labour and social security inspectors have the power to levy fines for acts that are in violation of the right to organize. In this regard, section 39(2)(a) of Act No. 50 of 1990 includes, among the acts by employers that are in violation of the right to organize, making it difficult for their personnel to join a union through the use of handouts or promises, or making it a condition for obtaining or retaining a job; and dismissing, suspending or changing conditions of work by reason of workers’ activities to establish trade unions. Moreover, the offence of the violation of the rights of association and assembly is criminalized by section 200 of Act No. 1453 of 2011. The Government indicates in its report that six organizations of domestic workers are registered in the database of the union register. The CTC, CUT and CGT indicate that, although the number of organizations of domestic workers has increased, their membership continues to be very low in comparison with the actual number of domestic workers. According to the calculations of the workers’ confederations, there are around one million men and women domestic workers in the country, of whom approximately 1,000 are unionized, as a result of which the unionization rate is 0.1 per cent in the domestic work sector. They add that domestic workers exercise their right to organize in hiding out of fear of dismissal, and usually on non-working days. The workers’ confederations refer to cases of the dismissal of domestic workers on the grounds of their trade union membership or participation in trade union activities, as well as the fact that there has not been any collective bargaining in the domestic work sector. In response, the Government indicates that there have been no administrative procedures for violations of the rights of domestic workers arising out of their trade union membership as a result of complaints lodged by domestic workers or workers’ organizations. Finally, the Government indicates that, within the framework of the tripartite round table to follow up the implementation of the Convention, organizations of domestic workers and of employers are participating in the design and development of public policies with a view to promoting decent work in the domestic work sector. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged with a view to ensuring the effective exercise in practice of the right to freedom of association and collective bargaining of domestic workers.

Article 3(2)(b). Forced labour. In response to the Committee’s previous comments, the Government refers once again to article 17 of the Constitution, which prohibits slavery, servitude and trafficking in human beings, and article 25, which recognizes the right of all persons to work in decent and fair conditions. In their observations, the CUT, CTC and CGT report cases in which they allege that domestic workers are required to perform work that is not included in their contract of employment and to work in houses other than those of their employers or enterprises. They also report that the labour inspection services do not carry out investigations into forced labour since, as a criminalized act, they consider it to be a matter for criminal investigation, and not for the labour authorities. The Government reports the absence of complaints in the database of the Ministry of Labour in relation to the cases denounced by the workers’ confederations. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged to guarantee in practice the protection of domestic workers from all forms of forced or compulsory labour. The Committee also requests the Government to provide statistical data on the number and nature of the offences reported in relation to cases of forced labour in the domestic sector, the investigations conducted, prosecutions and convictions.

Articles 3(2)(c) and 4. Child labour. Minimum age. The Government reports the development of the public policy component on the prevention and eradication of child labour and the protection of young workers 2017–27. The general objectives of the policy include action to address child domestic labour which, in view of its size, the extent of the violations, the circumstances and context in which it is performed, places girls, boys and young persons at a risk that is not visible. The Committee also notes the information provided by the Government on the action undertaken by the Ministry of Labour in relation to child labour between July 2016 and April 2017, including: inspections of the places in which minors work to follow up the authorizations issued for work by boys, girls and young persons; and training for labour and social security inspectors on the legislation in force on the protection of boys, girls and young persons. The workers’ confederations report that cases of child domestic work frequently involve the daughters of rural workers in houses in cities, where they are confined to the workplace and do not have access to education. With reference to the authorizations issued for work by minors, the Government indicates that between June 2016 and April 2018, a total of 5,048 authorizations were issued, 249 applications were refused and 136 were renewed. Moreover, 4,095 inspections were undertaken of the working conditions of minors engaged in work. In this regard, the Committee notes the indication by the CUT, CTC and CGT that cases in which authorizations are issued are more numerous than those in which they are denied, and that the Government does not indicate the authorizations issued in the domestic work sector. They also report alleged cases of the corruption of labour inspectors in relation to authorizations for work by minors. The Government indicates that in order to issue an authorization, labour inspectors have to comply with the requirements set out in section 3(36) of Decision No. 1796 of 2018, which prohibits work by minors in activities related to domestic work in their own households and in those of third parties for over 15 hours a week. With regard to the alleged cases of the corruption of the labour inspection services, the Government observes that the workers’ confederations have not provided evidence to support their allegations. It also reports the adoption of various measures by the Ministry of Labour to identify and bring to an end possible cases of corruption, including the establishment of a telephone line for complaints. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged with a view to the eradication of child labour in the domestic work sector, including those adopted under the public policy component for the prevention and eradication of child labour and the comprehensive protection of young workers 2017–27. The Committee also requests the Government to provide statistical data on cases of child domestic labour that are identified, the investigations conducted, prosecutions and sanctions imposed.

Articles 3(2)(d) and 11. Discrimination based on sex and race. Minimum wage. In its previous comments, the Committee referred to comments it had made concerning the Equal Remuneration Convention, 1951 (No. 100), and anticipated that the Government would take the necessary measures to amend the relevant legislation with a view to ensuring equal remuneration for men and women domestic workers for work of equal value. Moreover, noting that women Afro-Colombian domestic workers receive remuneration that is lower than the national minimum wage, it requested the Government to provide detailed information on the manner in which the application in practice is ensured in the domestic work sector of section 143(b) of the Substantive Labour Code, which prohibits differences in wages based, inter alia, on sex and race. The Government reports that on 18 May 2018 a proposed amendment to Act No. 1496 of 2011 was submitted to the Gender Subcommission of the Standing Tripartite Dialogue Commission on Wage and Labour Policies to guarantee equal wages and remuneration from work for women and men, establish machinery to eradicate any form of discrimination and adopt other provisions with a view to introducing the principle of equal wages for work of equal value. However, the Committee observes that the Government has not provided information in its report on the measures adopted to guarantee in practice the application of section 143(b) of the Substantive Labour Code in the domestic work sector with a view to the elimination of wage differences based, inter alia, on sex and race. The Committee also notes the indication by the CUT, CTC and CGT that domestic workers receive daily pay, depending on the city, of between 20,000 and 50,000 Colombian pesos, which is below the minimum wage. In that regard, the Government indicates that the remuneration received by domestic workers cannot be lower than the minimum wage and that they should also receive payment for overtime. The Government adds that ignorance of these rights does not exempt employers from their responsibilities or from sanctions for failure to comply with these provisions. The Committee requests the Government to provide information on the situation in relation to the proposed amendment to Act No. 1496 of 2011 and to provide a copy once it has been adopted. The Committee once again requests the Government to provide detailed information on the manner in which the application is ensured in practice of section 143(b) of the Substantive Labour Code in the domestic work sector, including reports from the labour inspectorate detailing the number of violations detected and the remedial action taken in this respect.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Committee notes that, in reply to its previous comments, the Government reiterates that domestic workers are protected on an equal footing with other workers by Act No. 1010 of 2006, under which measures are taken to prevent, correct and penalize work-related and other forms of harassment in the context of employment relationships. However, the Government does not indicate the manner in which full protection is ensured for domestic workers in the event of any of the extenuating circumstances set out in section 3 of Act No. 1010 of 2006, such as violent emotions, excusable passion or state of anger (which is not applicable in the event of sexual harassment), previous good conduct and discretionary compensation, even partial, for the damages caused. The Committee also notes the Government’s indication that the Labour Equity Group with a focus on gender of the Ministry of Labour has undertaken various activities to prevent and combat labour harassment and sexual harassment of women workers, including the training of labour inspectors in the various territorial departments, as well as the development of a tool for their use with a view to the identification of the types of violence referred to in complaints, and particularly those based on gender. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged with a view to ensuring compliance in practice with this Article of the Convention, especially in the case of migrant domestic workers. The Committee also requests the Government to provide statistical data on the number of complaints received by the various competent bodies concerning harassment, abuse and violence in the context of domestic work, their outcome, the penalties imposed on those responsible and the compensation granted. Moreover, recalling that section 3 of Act No. 1010 of 2006 provides for very broad attenuating circumstances in the case of workplace harassment, the Committee encourages the Government to remove those attenuating circumstances in order to ensure the full protection of domestic workers in the event of such circumstances.

Article 7. Understandable information on conditions of employment. Written contract of employment. In response to the Committee’s previous comments, the Government indicates that the Sub-directorate for Employment Formalization and Protection of the Ministry of Labour has undertaken awareness-raising and promotional activities on the labour rights of domestic workers, including participation in the media and the production of booklets and brochures. Through the National Citizens’ Service Programme, information is also provided to workers and employers on their rights and obligations, as well as on the various complaint mechanisms available. This information is available in the territorial departments and municipal inspection services throughout the country, as well as over a free telephone line. The CUT, CTC and CGT indicate that oral contracts continue to be used in general in the domestic work sector, and do not include the minimum terms and conditions set out in this Article of the Convention. The workers’ confederations allege that, in the absence of a written contract setting out the work to be performed, domestic workers are obliged to carry out additional unpaid work and to perform work that is not related to domestic work. They also emphasize that the Government has not adopted any type of model contract in the domestic work sector, and has not held consultations on this subject with the representative organizations of domestic workers. In its reply, the Government indicates that it plans to adopt measures for the preparation of a model employment contract for the domestic work sector. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to ensure in practice that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner, especially in the case of migrant domestic workers. The Committee also requests the Government to provide information regarding the way in which the model contract for the sector will include the elements set out in this Article of the Convention and requests the Government to provide a copy of the model contract when it has been finalized and to indicate whether it was adopted in consultation with the organizations of employers and workers.

Articles 8(1) and 9(c). Migrant domestic workers. Written job offers. Right to keep in their possession their travel and identity documents. With reference to the requirement to provide a written contract to migrant workers prior to them crossing national borders, the Government refers once again to section 37 of Act No. 1636 of 2013 and Decision No. 1481 of 2014, which establish the requirements to be met by management service and job placement agencies in order to recruit workers, including domestic workers, abroad. Section 4 of the Decision provides that “any regulations governing the provision of services shall contain specialized information, guidance and prevention module which shall be brought to the attention of users at the commencement of the provision of the service and at the final stage of pre-selection”. Regulations for the provision of services have to meet these requirements in order to receive the prior technical approval necessary for authorization to be issued by the Special Administrative Unit of the Public Employment Service. However, the Committee observes that the information module does not contain many of the terms and conditions that must be set out in the contract of employment in accordance with the provisions of Article 7 of the Convention, including the provision of food and accommodation, if applicable, and terms and conditions relating to the termination of employment. In their observations, the workers’ confederations emphasize the increasing number of women migrant domestic workers from the Bolivarian Republic of Venezuela. They allege that these women workers, due to their situation of particular vulnerability, earn on average half of the wages received by national female domestic workers. Moreover, they are not registered with the social security system as dependent workers and are not entitled to social benefits. The workers’ confederations report that, out of fear that their irregular migratory situation could be reported, migrant female domestic workers do not initiate action or make a complaint when their rights are violated and are afraid to join unions. They add that in the departments of Santander and North Santander (which are on the border with the Bolivarian Republic of Venezuela), the National Union of Food Workers (SINTRAIMAGRA) has received complaints or requests for advice by irregular Venezuelan female migrant domestic workers concerning allegations of sexual harassment, the failure to pay wages or the payment of wages below the minimum wage. The Government reports the inspection, supervision and control activities carried out to verify the working conditions of migrant workers and identify possible abusive recruitment practices, especially in the case of Venezuelan nationals. It adds that, between January 2017 and September 2018, the Territorial Department of Santander was consulted on six occasions by migrant domestic workers concerning compensation for their unfair dismissal, the payment of social benefits and the non-payment of wages. However, the Government indicates that no complaints have been received and no administrative measures have been taken in relation to the acts alleged by the trade union confederations in their observations. In that regard, the Committee notes that the Government has still not indicated the provision that guarantees that migrant workers are entitled to keep in their possession their travel and identity documents. The Committee requests the Government to adopt the necessary measures to guarantee that migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer or a contract of employment which includes the terms and conditions set out in Article 7 prior to crossing national borders for the purpose of taking up domestic work. In light of the observations made by the workers’ confederations, the Committee also requests the Government to continue providing information on the consultations held and the complaints received, as well as the inspections conducted in relation to the conditions of work of migrant domestic workers, and particularly those from the Bolivarian Republic of Venezuela. The Committee also once again requests the Government to provide detailed information indicating the manner in which it is ensured in practice that domestic workers are entitled to keep in their possession their travel and identity documents.

Article 10(3). Periods during which workers remain at the disposal of the household. In response to the Committee’s previous comments, the Government refers to the memorandum of 8 July 2018 of the Directorate of Inspection, Supervision, Control and Territorial Management, which provides that the working hours of domestic workers vary depending on their employment arrangement (live-out, live-in or daily). The Government reiterates that for domestic workers who reside in the household of the employer (live-in) the working day is a maximum of ten hours a day, while for other domestic workers (live-out or daily workers) the maximum working day is eight hours. When service is required beyond these time limits, it is necessary to recognize and pay overtime hours in accordance with the terms of the labour legislation. The Committee however notes that the Government does not indicate in its report whether periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible requests for their services (periods of immediate availability for work) are regarded as paid hours of work. The Committee reiterates its request to the Government to provide information on the manner in which it is guaranteed that periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household are regarded as paid hours of work, in accordance with Article 10 of the Convention.

Article 13. Specific and effective measures to ensure safety and health in domestic work. The Committee notes that, in response to its previous comments, the Government refers to the adoption of Decision No. 1111 of 27 March 2017, which determines the Minimum Standards of the Occupational Safety and Health Management System for employers and contractors. Section 2 of the Decision provides that “the Minimum Standards of the Occupational Safety and Health Management System … for individuals engaged in domestic service shall be established by an independent administrative act”. However, the Government does not provide information in its report on the specific minimum safety and health standards established in the domestic work sector. The Committee also notes that the Government reports, based on the statistical data of the Directorate of Labour Risks and the Federation of Colombian Insurers (FASECOLDA), that the number of domestic workers registered with labour risk administrators increased from 121,404 in 2017 to 125,069 in the first quarter of 2018. The Committee requests the Government to provide information on the application in practice of the minimum standards of the Occupational Safety and Health Management System established for the domestic work sector. It also requests the Government to continue providing statistical information, disaggregated by sex, on the number of domestic workers covered by insurance through labour risk administrators.

Article 14. Social security. In response to the Committee’s previous comments, the Government reports that between January 2015 and January 2017, the number of domestic workers registered fell from 101,335 to 96,159 for health protection, from 92,953 to 89,988 for pension coverage, from 100,933 to 95,935 for risk insurance and from 98,731 to 95,891 for family subsidies. The CUT, CTC and CGT emphasize that the number of domestic workers registered with the social security system continues to be very low (only 10 per cent). The Committee also notes that measures have continued to be taken to promote the registration of domestic workers with the social security system, including hourly domestic workers. The Government refers, among other measures, to the holding of a meeting on 27 April 2018, supported by the ANDI, to develop measures to strengthen awareness-raising concerning Act No. 1788 of 7 July 2016, which guarantees universal access to entitlement to the service bonus for men and women domestic workers, and the implementation of measures to raise awareness of Decree No. 2616 of 2013, establishing a weekly contribution mechanism to the pension system. However, the Government reports that lack of knowledge by domestic employers and workers of the applicable legislation continues to be an obstacle to its effective implementation. The Government also reports difficulties relating to the application of Decree No. 2616 of 2013, which does not refer to the registration of daily workers with the health system. The Committee requests the Government to continue providing information on the measures adopted or envisaged with a view to promoting the registration of domestic workers with the social security system. The Committee also requests the Government to continue providing statistical data, disaggregated by sex, on the number of domestic workers paying social security contributions, including an indication of the modality.

Article 15(1)(a), (b) and (e) and (2). Private employment agencies. In response to the Committee’s previous comments, the Government indicates that Decree No. 1072 of 2015, issuing the single decree regulating labour, provides that public and private employment management and placement agencies are service providers to the Public Employment Service. Such agencies are required to comply with the principles of the Public Employment Service for the provision of management and placement services, establish rules regulating the provision of services and inform users of them, and provide basic employment management and placement services free of charge for workers. The Government adds that, in the event of failure to comply with the requirements for the provision of employment management and placement services, the penalties include fines, suspension or the withdrawal of authorization. The Committee requests the Government to provide statistical data on the number of complaints received for alleged abuses and fraudulent practices by private employment agencies in relation to domestic workers, the violations identified and the penalties imposed.

Article 17(1). Complaint mechanisms. The Government indicates that, through the territorial departments, labour inspection services and labour guidance and support centres, guidance is provided to domestic workers on their rights and duties in relation, among other issues, to working time, wages, the payment of work on Sundays and public holidays, entitlement to social benefits and the service bonus. Advice is also provided to workers concerning their requests, complaints, claims, suggestions and denunciations. The Government indicates that between June 2016 and March 2018 the territorial departments were consulted on 29,719 occasions by domestic workers seeking information. The Government adds that, between January 2016 and April 2018, a total of 7,232 conciliation procedures were undertaken by labour inspectors in relation to disputes between workers and employers in the domestic work sector. In their observations, the workers’ confederations emphasize that the figures show a very sharp increase in the number of conciliation procedures, in contrast with the low number of labour inspections conducted (between June 2016 and March 2018, there were only 16 labour inspections in the domestic work sector and 53 penalties were handed down for violations of the rights of workers). In this regard, the workers’ confederations consider that conciliation does not safeguard or protect the rights of domestic workers, as labour inspectors act as mere mediators in the unequal employment relationship that generally exists between domestic workers and their employers. The CUT, CTC and CGT consider that effective complaint procedures are necessary to guarantee that violations of the rights of domestic workers are investigated and punished. The Government expresses the view that the high number of conciliation procedures is due to the fact that in the event of the violation of their rights domestic workers tend to opt for this expeditious means of resolving disputes, as it allows the flexible settlement of disputes and achieves the desired results. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged to ensure compliance in practice with this Article of the Convention. The Committee also requests the Government to continue providing detailed information on the number of complaints made by domestic workers to the various competent bodies, the penalties imposed and the compensation granted.

Article 17(2) and (3). Labour inspection and penalties. In response to the Committee’s previous comments, the Government indicates that the inspection of the working conditions of domestic workers, including internal domestic workers, is part of the national inspection system. However, the fact that the workplace is the home of the employer makes inspection difficult. Inspection in the domestic work sector therefore requires a different approach, as a result of which supervision of compliance with labour and social security provisions by the labour inspection services is carried out by requesting a series of elements from the employer with a view to carrying out a preliminary verification and/or administrative labour investigation. The Government reports that between June 2016 and March 2018 a total of 15 inspections were carried out in relation to all labour undertaken in households through a preliminary verification and an inspection in the case of administrative labour investigations. However, the Committee observes that the Government has not indicated which of the inspections were undertaken in the domestic work sector. The CUT, CTC and CGT emphasize that the conditions have not yet been established under which the access of the inspection services is authorized to household premises, having due respect for privacy. The workers’ confederations consider that it is necessary to prepare a labour inspection strategy for the domestic work sector and to establish a body of inspectors specialized in the sector in each territorial department of the Ministry of Labour. The Committee requests the Government to continue providing information on the measures adopted or envisaged for the development and application in practice of a labour inspection strategy for the domestic work sector, as well as for the application of the legislation and sanctions, having due regard for the special characteristics of domestic work. The Committee also requests the Government to provide information on the number of inspections in the domestic work sector, the number of violations identified and the penalties imposed. The Committee also reiterates its request for the Government to specify, insofar as compatible with national laws and regulations, the conditions under which access to household premises may be granted, having due respect for privacy.

Article 18. Measures for the implementation of the provisions of the Convention. The Government reports the various activities undertaken within the context of the tripartite round table to follow up the implementation of the Convention. In this respect, the Government refers to the presentation on 17 October 2017 of the Inter-Union Agenda for the Domestic Work Sector by the Confederation of Women Afro-Colombian Domestic Service Workers in Colombia (USTRAD) and the SINTRAIMAGRA. The contents of the Agenda were presented on 22 March 2018 and include the development of activities in relation to the legal aspects of domestic work, the Afro-Colombian and gender components in the sector, social security, inspection, supervision and control, as well as awareness-raising and educational campaigns. The Committee requests the Government to provide detailed information on the activities of the tripartite round table to follow up the implementation of the Convention, as well as copies of the annual reports that the Ministry of Labour submits to the Congress of the Republic on the action taken and progress achieved in guaranteeing decent working conditions in the domestic work sector.

Application of the Convention in practice. The Committee requests the Government to continue providing information on any judicial or administrative decisions relating to the application of the Convention and to provide copies of the decisions.

The Committee notes the observations of the National Employers Association of Colombia (ANDI) and the International Organisation of Employers (IOE), received on 31 August 2018, in which they place emphasis on the measures adopted in recent years to protect and extend the rights of men and women domestic workers. The Committee also notes the observations of the Confederation of Workers of Colombia (CTC), the Single Confederation of Workers of Colombia (CUT) and the General Confederation of Labour (CGT), received on 1 September 2018, and the Government’s response, received on 19 November 2018. The Committee requests the Government to provide its comments on the observations of the ANDI and the IOE.

Article 6 of the Convention. Fair terms of employment and decent working conditions. In its previous comments, the Committee requested the Government to take the necessary measures to amend sections 77 and 103 of the Substantive Labour Code to ensure that domestic workers have the same trial period, the same period of notice for the termination of fixed-term contracts and the same guarantees as other workers. It also requested the Government to indicate the measures envisaged or adopted to ensure that domestic workers, like other workers generally, enjoy fair terms of employment and decent working conditions. The Committee notes that the Government indicates once again that the labour rights and guarantees recognized in national legislation apply equally to domestic workers, on the basis, among other provisions, of Article 13 of the Constitution, which sets out the principle of equality, and Article 53, which establishes the minimum labour rights recognized for all workers. The Committee notes with interest ruling No. C-028/19, of 30 January 2019, of the Constitutional Court of Colombia, which declares inapplicable section 77(2) of the Substantive Labour Code, which provided for the presumption of a trial period of 15 days in the contracts of domestic workers, while subsection 1 did not establish any such presumption for other workers, but provided that the trial period was to be set out in writing. Section 77(2) was declared inapplicable on the grounds that it was incompatible with Articles 13 and 53 of the Political Constitution. The Constitutional Court emphasized in particular that “the precept included differentiated treatment in respect of domestic work, which is undertaken mainly by women with few means and a social protection deficit”. It also found that “as it is established that the majority of their labour relations are agreed through verbal contracts, in which the presumption of the trial period applies, which is not the case of employees engaged in other types of work, in contravention of the principles set out in Article 53 of the Constitution respecting equality of opportunities and the performance of work under decent and just conditions.” With regard to section 103 of the Substantive Labour Code, which provides for a written notice period of 30 days for the termination of fixed-term contracts, except in the case of domestic workers, for whom there is a notice period of only seven days, the CUT, CTC and CGT indicate that no measures have been adopted to amend the section with a view to guaranteeing equality for domestic workers in relation other workers with regard to the period of notice required for the termination of contracts of employment. The Committee therefore reiterates its request to the Government to take the necessary measures to amend section 103 of the Substantive Labour Code with a view to ensuring that domestic workers benefit from the same period of notice for the termination of fixed-term contracts, as well as the same guarantees as other workers. The Committee also requests the Government to continue providing information on the measures adopted or envisaged to ensure in practice that domestic workers, like workers generally, enjoy fair terms of employment and decent working conditions, as envisaged in Article 6 of the Convention.

Articles 6, 9(a) and 10. Workers who reside in the household. Decent living conditions that respect their privacy. Equality in respect of other workers in relation to hours of work and overtime compensation. In response to its previous comments, the Government indicates that domestic work can take three forms: internal, that is those who reside in the household; external, that is those who do not reside in the household; and daily, that is domestic workers who do not reside in the household and only work certain days of the week, for one or more employers. The Government adds that the working hours of domestic workers therefore vary depending on the form of their work. In this regard, the Government reiterates that the ordinary maximum hours of work established by law for external or daily domestic workers are eight in the day and 48 in the week. All hours that are worked in addition to the maximum number of hours established are considered to be overtime and paid as such. With regard to domestic workers who reside in the household, the Government refers once again to ruling No. C-372 of 1998 of the Constitutional Court, under the terms of which such domestic workers may not work more than ten hours a day. According to the High Court, when the hours of work a domestic worker are over that limit, such hours must be paid as overtime, under the terms of the labour legislation. The Government adds that the domestic worker and the employer may agree fewer hours than the legal maximum, in which case the wages paid will be proportional to the hours worked. The CUT, CTC and CGT observe that measures have not been taken to eliminate the discrimination existing for domestic workers who reside in the household in relation to other workers with regard to maximum hours of work and overtime pay. The workers’ organizations reiterate that in practice such different treatment implies that, due to the exception to maximum working hours establishing a maximum of ten hours a day for live-in domestic workers, the additional two hours that they may work, are not included and therefore not paid as overtime, compared to the situation of other workers, for whom maximum daily hours of work are set at eight. In its reply, the Government reiterates that the limit of ten hours of work a day established by the case law of the Constitutional Court is applied to live-in domestic workers, while the normal maximum statutory working time of eight hours a day is applied to other domestic workers. The Government adds that, although the maximum weekly limit of 48 hours set out in section 161 of the Substantive Labour Code does not apply to live-in domestic workers, Sunday is the compulsory day of rest for all workers. In the event that work is performed on a Sunday, the appropriate supplement has to be paid, and if more than three Sundays are worked in a month, the employer is required to grant the worker the corresponding compensatory rest. Finally, the Committee notes that the Government has not provided information in its report on the existence of provisions regulating the quality of food, the nature of accommodation or the right to privacy that must be enjoyed by domestic workers who reside in the household. The Committee recalls that, under the terms of Article 9(a) of the Convention, each member shall take measures to ensure that domestic workers are free to reach agreement with their potential employer on whether to reside in the household. When workers reside in the household, legal provisions on their living conditions are an essential component of the promotion of decent work for them. The Committee considers that the legislation should set out the obligations of employers in this respect. The Committee once again requests the Government to take the necessary measures to guarantee equal conditions in terms of normal hours of work between domestic workers who do not reside in the household and those who do. The Committee also once again requests the Government to provide information on the measures adopted to ensure that domestic workers who reside in the household receive overtime compensation under equal conditions with other workers. It also requests the Government to provide detailed information on the manner in which the quality of food, the nature of their accommodation and the right to privacy of domestic workers who reside in the household are regulated.

Comments adopted by the CEACR: Colombia

Adopted by the CEACR in 2019

C023 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Seamen’s Articles of Agreement Convention, 1926 (No. 22)

Repatriation of Seamen Convention, 1926 (No. 23)

C169 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C169 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

C189 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C189 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Comments adopted by the CEACR: Colombia

Display the list by:

Adopted by the CEACR in 2019

C023 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Seamen’s Articles of Agreement Convention, 1926 (No. 22)

Repatriation of Seamen Convention, 1926 (No. 23)

C169 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C169 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

C189 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C189 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)