Observation (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee notes the Government's report and the discussion that took place during the 1998 Conference Committee.

Firstly, the Committee regrets that the Government's report consists only of a reference to its previous report. The Committee recalls that during its examination of the application of the Convention in Colombia, the Conference Committee in 1998 expressed "the firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete progress made both in law and in practice to ensure the application of this fundamental Convention ratified more than 20 years ago".

The Committee recalls that it had noted in its previous observation that the Government had prepared a Bill with the assistance of an ILO mission on freedom of association which visited the country in 1996, repealing and modifying a number of provisions of the Substantive Labour Code that had been criticized by the Committee for a number of years; however, the National Congress decided to shelve the Bill.

In this regard, the Committee is obliged to recall that there are numerous legislative provisions giving rise to problems of conformity with the Convention. In particular, the Committee has been requesting the Government for a number of years to repeal or modify the following provisions:

-- section 365(g) of the Labour Code on the requirement, in order for a trade union to be registered, that the labour inspector must certify that there is no other union;

-- section 384 on the requirement that, in order to form a union, two-thirds of its members must be Colombian;

-- section 388(1)(a) on the need to be of Colombian nationality to hold executive office in a trade union;

-- section 388(c) on the requirement to have normally exercised the activity, trade or position characteristic of the trade union in order to be a trade union officer;

-- section 432(2) on the need to be of Colombian nationality in order to be a member of a delegation submitting to an employer the list of claims that are being made;

-- section 486 on the supervision of the internal management of trade unions and meetings of unions by public servants;

-- section 444, last subsection, on the presence of the authorities at general assemblies convened to vote on referral to arbitration or on the calling of a strike;

-- section 422(1)(c) on the need to have exercised the activity, occupation or position characteristic of the trade union in order to hold office in a federation or confederation;

-- sections 388(f) and 422(f), which provide that a person must not have been condemned to a serious penalty, unless he or she has been rehabilitated, nor sued for ordinary offences at the time of election;

-- section 380(3) which provides that "any member of a trade union executive who has been responsible for the dissolution of a union as a sanction may be denied the right of trade union association in any form for up to three years (...)";

-- section 417(1), which provides that "federations and confederations have the right to the recognition of their legal personality and have the same functions as trade unions, except for the calling of a strike, which is the sole competence, when so authorized by the law, of the respective trade unions or groups of workers directly or indirectly concerned";

-- section 488(3), which provides that "when a strike is called, the Minister of Labour and Social Security, ex officio or at the request of the trade union or trade unions representing the majority of workers at the enterprise, or if not, of the workers gathered in a general assembly, may, once a strike is called, submit to a ballot by all the workers in the enterprise whether they wish to submit the remaining dispute to arbitration";

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

-- the power of the Minister of Labour to refer a dispute to arbitration when a strike lasts over a specific period (section 448(4) of the Code); and

-- the possibility of dismissing a trade union officer who has intervened or participated in an unlawful strike (new section 450(2) of the Code), including when the strike is unlawful due to failure to comply with excessive requirements such as those mentioned in the foregoing subparagraphs.

Under the circumstances, the Committee is obliged to stress the gravity of the situation and requests the Government to immediately take the measures necessary to have the above-noted provisions amended or repealed as soon as possible in order to bring the legislation into conformity with the Convention. The Committee requests the Government to keep it informed in this regard.

[The Government is asked to report in detail in 1999.]