Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee notes the Government’s report. It also notes the discussions in the Conference Committee on the Application of Standards in 2005, during which it was decided that a high-level tripartite visit would be undertaken on the prior invitation of the Government of Colombia to the Chairperson of the Committee on Freedom of Association and the Employer and Worker Vice-Chairpersons of the Conference Committee on the Application of Standards. The Committee notes the report of the high-level tripartite visit and the reports of the Committee on Freedom of Association on the various cases under examination relating to Colombia, as adopted at its sessions in March, June and November 2005.

The Committee also notes the comments on the application of the Convention made by the Single Confederation of Workers (CUT), the General Confederation of Democratic Workers (CGTD), the Confederation of Workers of Colombia (CTC) and the Confederation of Pensioners of Colombia (CPC) in communications dated 7 and 14 June and 2 and 7 September 2005. The CTC also sent a communication dated 31 August 2005. The Union of Workers of the Electricity Company of Colombia (SINTRELECOL) sent its comments in a communication on 20 September 2005 and the International Confederation of Free Trade Unions (ICFTU) in a communication dated 31 August 2005. The World Confederation of Labour (WCL) and the ICFTU made joint comments in a communication on 30 August 2005.

The Committee observes that the above organizations refer to acts of violence against trade union leaders and trade unionists which include murders, kidnappings, attempted assassinations and disappearances, and to the grave impunity which surrounds such acts. They also refer to the use of various types of contractual arrangements, such as associated work cooperatives and service, civil or commercial contracts to carry out functions and work that are within the normal activities of the establishment and which result in it being impossible for the workers to establish or join trade unions. They also refer to the restructuring of public bodies, which are then closed down so as to be re-established without a trade union. The organizations further describe the arbitrary refusal to register new trade union organizations or new rules or the executive committee of a trade union; the acceptance of challenges by employers against the registration of new unions; and the prohibition of the right to strike in certain services which are not essential services.

The Committee notes that, with regard to acts of violence against the leaders and members of trade union organizations, the Government indicates that it has made great budgetary, organizational and human efforts to confront the armed groups operating outside the law and to restore democratic security, the control of the national territory and the presence of state social institutions. Furthermore, on 25 July 2005, Act No. 975 on Justice and Peace was adopted, which contains provisions to facilitate the reintegration of the members of illegal armed groups into civil life. The Government adds that the National Security and Citizens’ Coexistence Fund was established by Decree No. 21870, of 7 July 2004, thereby demonstrating the priority given by the Government to the issue of security. Furthermore, the Commission for the Regulation and Evaluation of Risks (CRER) of the Programme for the Protection of Witnesses and Persons under Threat, under the authority of the Ministry of the Interior and Justice, provided protection in 2004 to 163 trade union organizations and 1,615 trade unionists. The security measures adopted include the reinforcement of buildings, armoured vehicles, telephone tapping, the provision of arms and bullet-proof jackets, as well as cell phones and air tickets. The Government emphasizes that 54.9 per cent of the protection provided is granted to trade unions.

With regard to the murder of trade unionists, the Government provides information on the establishment of an investigation unit within the Office of the Attorney-General devoted exclusively to the investigation of violations of the human rights of trade unionists. The Government provides comparative tables showing the decline in the number of such murders in 2005 and indicates that the Office of the Attorney-General is making progress in the investigations that are being carried out, although some of them are being hindered by the methods used by illegal armed groups. The Government indicates that teaching is the sector most affected by the murder of trade unionists. It provides statistics on the murders of trade unionists from 2000 to 2005 by sector and on the investigations being carried out by the various sections of the Office of the Attorney-General. In relation to murders of trade unionists, the Government indicates that six cases were recorded during the period January-June 2005, compared with 27 cases over the same period the previous year, amounting to a reduction of 78 per cent. These figures do not take into account unionized teachers, in relation to whom the figure of 31 murders during the period January-June 2004 fell to 18 over the same period in 2005, corresponding to a decline of 42 per cent.

In relation to the investigations that are being carried out, the statistics provided show that there are 313 investigations, of which 267 are in the preliminary stage, 32 are under examination and 14 are before the courts. The Government also provides the list of all the investigations carried out between 2002 and 2004 and, in which: sentences of preventive detention were applied in 36 cases, charges were brought in 21 cases and convictions were obtained in four cases, while in 131 cases further investigation was ordered, in five cases the completion of the investigation was ordered either by bringing charges or closing the case, in 99 cases the investigation was shelved for lack of evidence, in 19 cases the investigation was suspended and in two the case was dismissed. The Government indicates that the reasons which led to the provisional shelving of investigations for lack of evidence or the suspension of the investigation included: difficulties in protecting witnesses and their refusal to testify, lack of collaboration by the population, difficulties experienced by investigators in reaching the scene of the crime, difficulties in the identification of members of armed groups, such as paramilitary groups and guerrillas, and the absence of witnesses. The Government also refers to the new penal system for bringing charges which entered into force in January 2005 under which the functions of the Office of the Attorney-General are confined to investigation and it no longer exercises jurisdictional responsibility. Furthermore, under the new system, all the procedures are oral. The Government expresses the view that all of these measures will help to ease the congestion of the judicial system and accelerate the administration of justice.

Taking into account the Government’s report and the conclusions of the high-level tripartite visit, the Committee notes with interest the efforts made by the Government to bring to an end the serious armed conflict which has been affecting the country for decades and in which various illegal armed groups are active. The Committee requests the Government to continue taking all the measures available to it, taking due account of the need to respect fundamental human rights and the rule of law in order to achieve the total elimination of impunity.

With particular reference to acts of violence against trade union leaders and members, the Committee notes the efforts made to increase the security of citizens in general, and of trade union leaders and members in particular, through specific programmes, such as the establishment of the Commission for the Regulation and Evaluation of Risks and the National Security and Citizens’ Coexistence Fund, and that 54.9 per cent of the funds devoted to protection are allocated for trade unions. The Committee also notes the statements that no effort will be spared to achieve the complete elimination of murders, particularly of trade union leaders. However, the Committee regrets to note that, although the murder rate has declined, the trade union movement in Colombia continues to be confronted by a situation of grave violence, and that murders of trade union leaders and members continue and that their security is permanently under threat, as illustrated by the high level of protection provided to trade unionists, which is considerably higher than that afforded to other sectors of the population. The Committee recalls the interdependence of civil liberties and trade union rights and its conviction that a truly free and independent trade union movement can only develop in a climate of respect for fundamental human rights (see General Survey on freedom of association and collective bargaining, 1994, paragraph 26) and that organizations of workers and employers can only exercise their activities freely and meaningfully in a climate that is free from violence. The Committee once again urges the Government to continue taking all the necessary measures to guarantee the right to life and security, so as to permit the exercise of the rights guaranteed by the Convention.

In relation to the situation of impunity, and particularly with regard to investigations into acts of violence, including murders, kidnappings, disappearances, attempted assassinations and threats against trade union leaders and members, the Committee notes the efforts made by the Government in general, and by the Office of the Attorney-General in particular, to reduce the level of violence and the adoption of a new system for bringing penal charges which, according to the Government, will relieve the congestion in the judicial system and accelerate the administration of justice. The Committee notes with interest the recent establishment of an investigation unit within the Office of the Attorney-General devoted exclusively to the investigation of violations of the human rights of trade unionists. Nevertheless, the Committee observes once again that impunity continues to prevail. Indeed, while taking into account the obstacles to the proper administration of justice, the identification of those responsible and their prosecution reported by the Government, the Committee is bound to note that during the period between 2002 and 2004 convictions have only been achieved in four cases as a result of the investigations carried out, while the great majority of the remaining investigations have been shelved for lack of evidence. Under these conditions, the Committee strongly urges the Government to continue making the most determined efforts to investigate all acts of violence committed against trade union leaders and members, to elucidate the circumstances in which they were committed and to identify those responsible so that they can be duly punished with a view to bringing an end to the very grave situation of impunity.

In particular, the Committee notes the recent adoption of Act No. 975 on Justice and Peace, which contains measures to facilitate the reintegration of members of illegal armed groups into civil life. The Committee notes that, according to the report of the high-level tripartite visit, the Act has been the subject of various challenges in the Constitutional Court, which has not yet ruled on them. The Committee also notes that the Office of the United Nations High Commissioner for Human Rights in Colombia has criticized various aspects of the Act as an instrument of transitional justice intended to achieve lasting peace which, on the one hand, should offer incentives to unlawful armed groups to demobilize and end hostilities and, on the other, should adequately guarantee the rights of the victims of the atrocious crimes committed by the members of these groups. The Committee expresses the firm hope that the Act will be applied taking into account the criteria indicated by the Office of the High Commissioner for Human Rights so as to guarantee in an appropriate manner the proper administration of justice and the just compensation of the victims of violent acts with a view to the complete eradication of impunity. The Committee requests that the Government keep it informed of the outcome of the challenges brought in the Constitutional Court and the manner in which the Act is applied, particularly with regard to cases relating to trade union leaders and members.

Furthermore, the Committee notes that, in addition to the report of the high-level tripartite visit, the comments made by the trade union organizations also relate to other matters:

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- The use of various contractual arrangements, such as associated work cooperatives and service, civil or commercial contracts to cover what are in practice employment relationships which are used to carry out functions or work within the normal activities of the establishment and under which workers are not allowed to establish or join trade unions. The Committee notes that the Government’s report does not contain observations on this subject and that the high-level tripartite visit had the opportunity to receive information in this connection from employers’ and workers’ organizations and the Government. Both the employers and the Government acknowledged the existence of abuses in the use of these contracts and indicated that, with particular reference to cooperatives, Congress is currently examining a Bill to supervise their proper use and to prohibit cooperatives from acting as intermediaries or temporary work agencies. The Committee recalls that Article 2 of the Convention provides that workers and employers, without distinction whatsoever, shall have the right to establish (...) and to join organizations of their own choosing. The Committee considers that when workers in cooperatives or those covered by other types of civil or commercial contracts have to perform work within the normal activities of the establishment in the context of a relationship of subordination, they should be considered as employees in a real employment relationship and should therefore enjoy the right to join trade unions. The Committee therefore requests the Government to take the necessary measures to ensure that full effect is given to Article 2 of the Convention so that all workers without distinction whatsoever enjoy the right to establish and join organizations.

- The restructuring of public establishments involving the massive dismissal of workers, including trade union leaders, and in some cases the closure of such establishments, which are then re-established as a different entity and contracts accorded to former workers who were not unionized or on condition that they give up union membership, and where it is no longer possible for a trade union to exist. The Committee observes that the Government refers to certain specific cases of restructuring and states that they corresponded to a need for rationalization and were not undertaken for anti-trade union purposes. The Committee reiterates the principles set forth in the previous paragraph and requests the Government to take the necessary measures to ensure that workers can exercise their trade union rights freely during any restructuring process and in the new restructured establishments.

- The arbitrary refusal to register new trade union organizations, new trade union rules or the executive committee of a trade union at the discretion of the authorities for reasons which go beyond the explicit provisions of the legislation. The Committee notes the Government’s indication that the legislation in force has been strictly complied with and that it provides statistics on the number of trade union organizations registered and the number of applications for registration refused. The Committee notes that these statistics show that a high number of applications for registration, both for new trade union organizations, and for changes to their rules or new executive committees, are rejected. The Committee recalls that Article 2 of the Convention guarantees the right of workers and employers to establish organizations “without previous authorization” by the public authorities and that national regulations governing the constitution of organizations are not in themselves incompatible with the provisions of the Convention, provided that they are not equivalent to a requirement for “previous authorization”, nor constitute such an obstacle that they amount in practice to a prohibition (see General Survey, op. cit., paragraphs 68 and 69). In this connection, the Committee requests the Government to ensure that the registration of trade unions is only refused in those cases explicitly envisaged by the legislation and that the registration authority does not use its discretion to refuse such applications, so as to give effect to the requirements of Article 2 of the Convention.

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-  The prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code). In this respect, the Committee reiterates that higher-level organizations should be able to call a strike in the case of disagreement with the Government’s economic and social policy. It requests the Government to take measures to amend section 417(i) of the Labour Code.

- The prohibition of strikes, not only in essential services in the strict sense of the term, but also in a very broad range of services which are not necessarily essential (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) and the possibility to dismiss trade union leaders who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even where the unlawful nature of the strike is a result of requirements that are contrary to the principles of freedom of association. The Committee once again requests the Government to take measures to amend the legislative provisions referred to above and to provide information in its next report on any measure adopted in this respect.

- The authority of the Minister of Labour to refer a dispute to arbitration when a strike exceeds a certain period (section 448(4) of the Labour Code). The Committee reiterates its previous comment that the use of compulsory arbitration to bring an end to a strike is only acceptable when it has been requested by the two parties involved in the dispute or in cases in which the strike may be restricted or even prohibited, that is in cases of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Under these conditions, the Committee requests the Government to take measures to repeal this provision of the Labour Code and to provide information in its next report on any measure adopted in this respect.

The Committee is addressing a request directly to the Government on another point.