Observation (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

The Committee notes the Government's report, the discussions at the Conference Committee in 1991 and the report of the direct contacts mission which visited Colombia from 16 to 20 September 1991.

The Committee notes with interest the provisions of the new Constitution (of 18 July 1991) respecting freedom of association, including the provision under which the cancellation or suspension of legal personality can only take place by judicial means.

The Committee notes with satisfaction the repeal of the following legal provisions restricting trade union rights, which results in a significant improvement in the application of the Convention:

- section 380 of the Labour Code (the dissolution, winding up and removal from the trade union register of trade unions by administrative authority in certain cases) (modified by Act No. 50 of 1990);

- Resolution No. 4 of 1952 (administrative interference in trade union independence) (abrogated by Decree No. 4734 of September 1991);

- Decree No. 1923 of 1978 (respecting national security, which prohibited any transitory occupation of public places with the objective of influencing a decision by the legitimate authorities which is not in force any more);

- Decree No. 1422 of 1989 (administrative intervention in trade unions' bookkeeping) (abrogated by Ministerial Decree of September 1991);

- Decrees Nos. 2655 of 1954, 85 of 1956 and 1469 (sections 14-26) of 1978 (restrictive regulations respecting trade union meetings) (abrogated by Decree No. 2293 of October 1991);

- section 379(a) of the Labour Code (prohibition of trade unions from taking part in political matters) (abrogated by Act No. 50 of 1990);

- Decrees Nos. 2200 and 2201 (prohibition of strikes, subject to administrative penalties and sentences of imprisonment, in cases where a state of emergency has been declared) (abrogated by Decree No. 2620 of December 1990).

Notwithstanding the amendments made by the Government, the Committee is bound to emphasise the provisions of the legislation which remain in force and are incompatible with the Convention. These include the following points:

1. The establishment of workers' organisations (Article 2 of the Convention)

- the requirement that two-thirds of the members are Colombian to establish a trade union (section 384 of the Labour Code);

- massive dismissals of workers in the public sector and the extended use of short-term contracts in the private sector aimed at weakening the trade union movement, which were brought to the attention of the direct contacts mission.

2. Interference in the internal administration of trade unions (Article 3 of the Convention)

- the supervision of the internal management and meetings of unions by public servants (section 486 of the Labour Code and section 1 of Decree No. 672 of 1956);

- the presence of the authorities at general assemblies convened to vote upon the calling of a strike (new section 444, last paragraph, of the Labour Code);

- the requirement that persons be Colombian for election to trade union office (section 384 of the Labour Code);

- the suspension for up to three years, with loss of trade union rights, of trade union officers who have been responsible for the dissolution of their unions (new section 380(3) of the Labour Code);

- the requirement that persons belong to the trade or occupation in order to be considered eligible for election to trade union office (sections 388(1)(c) and 432(2) of the Labour Code and section 422(1)(c) of the Labour Code for federations).

3. Right of trade unions to further and defend the interests of the workers (Article 3 of the Convention)

- the prohibition on federations and confederations from calling a strike (section 417(1) of the Labour Code);

- the prohibition of strikes not only in the essential services in the strict sense of the term, but also in a very wide range of public services which are not necessarily essential (section 430 and new section 450(1)(a) of the Labour Code and Decrees Nos. 414 and 437 of 1952; 1543 of 1955; 1593 of 1959; 1167 of 1963; 57 and 534 of 1967);

- various restrictions on the right to strike and the power of the Minister of Labour and the President to intervene in the dispute (sections 448(3) and (4) and 450(1)(g) of the Labour Code, Decree No. 939 of 1966 as amended by Act No. 48 of 1968, and section 4 of Act No. 48 of 1968);

- the possibility of dismissing trade union officers who have intervened or participated in an illegal strike (new section 450(2) of the Labour Code).

The Committee notes the Government's statement in its report that there is no ILO Convention in which an ILO position has been adopted on the right to strike, and that a reading of Article 3 of the Convention shows that the Article refers to the right of workers to formulate their programmes of activities, but that such a programme cannot transgress the Constitution and laws of a country. The Government adds that Article 2 of the Convention only enshrines the right of autonomy of trade unions but in no case the right to strike, which has its own specific characteristics. Finally, with reference to the prohibition of strikes in the public services, the Government notes that in the new political Constitution the right to strike is guaranteed except in the essential public services, as defined by the legislator.

The Committee emphasises that although it is clear that the provisions of the Convention do not specifically mention the right to strike, Article 3 of the Convention provides that workers' organisations shall have the right to organise their activities and formulate their programmes in full freedom. The Committee considers that this right includes recourse to strikes, which are one of the essential means through which workers and their organisations may promote and defend their economic and social interests. As an essential means in this respect, it should not be the object of excessive restrictions. The Committee has considered that the prohibition of strikes in the public services should be confined to public servants acting in their capacity as agents of the public authority or to essential services in the strict sense of the term, that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Moreover, if strikes are restricted or prohibited for public employees and persons who work in essential services, the Committee has considered that appropriate guarantees should be afforded such as impartial and speedy conciliation, mediation and arbitration procedures, in order to protect those workers who are denied one of the essential means of defending their occupational interests.

The Committee notes with interest that Minister of Labour and Social Security expressed to the direct contacts mission the desire formally to request the technical assistance of the ILO in the future process of reforming labour legislation.

The Committee requests the Government to continue taking measures to adjust its legislation to the requirements of the Convention and to supply information in this respect.

The Committee is also addressing a request directly to the Government.