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Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Colombie (Ratification: 1976)

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 16 September 2020, and the joint observations of the Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC), received on 1 October 2020, as well as the corresponding comments of the Government. The Committee notes that these various observations relate to matters examined by the Committee in its present observation, as well as allegations of violations of the Convention in practice.
The Committee also notes the observations of the National Employers Association of Colombia (ANDI), communicated by the International Organisation of Employers on 1 October 2020, which refer to matters examined in the present observation.
Trade union rights and civil liberties. The Committee recalls that for many years it has been examining, in the same way as the Committee on Freedom of Association, allegations of violence against trade unionists and the situation of impunity in this regard. The Committee notes with deep concern that the ITUC, CUT and CTC continue to report the persistence of the situation of anti-union violence in the country. In this regard, the Committee notes that the ITUC, after referring to the particularly heavy impact of anti-union violence in the education, transport, mining and energy sectors, specifically denounces: (i) the murder between January 2019 and March 2020 of 14 trade union leaders; (ii) during the same period, four attempted murders, one case of forced disappearance and 198 cases of death threats against members of the union movement; (iii) the murder on 26 July 2020 of a union leader in the agricultural sector; (iv) the following and spying upon, by army agents, of various trade union and social leaders, including the Vice-President of the National Union of State and Public Service Workers of Colombia (UTRADEC) and the Human Rights Secretary of the General Confederation of Labour (CGT), Mr Humberto Correa between February and December 2019; and (v) the incapacity of the Government to provide specific and adequate protection for trade unionists who are victims of death threats, or to make progress in processing the many historical cases of murders and other violent crimes and resolve the majority of the most recent cases.
The Committee also notes the affirmation by the CUT and the CTC that an intense situation of anti-union violence persists, with sectoral and territorial characteristics similar to those described in 2019, and that the resurgence of anti-union violence in the rural sector is especially noteworthy, particularly in areas formerly controlled by the Revolutionary Armed Forces of Colombia (FARC). The trade union confederations emphasize that paramilitary forces and new criminal groups, which in some areas are related to local economic and political power bases, are the principal source of threats to trade unionism. They add that the unions worst affected by anti-union violence are in agriculture, education, the mining and energy sector, the public sector and transport.
The Committee notes the specific allegations by the CUT and CTC that: (i) three years after the conclusion of the Peace Agreement, between 2016 and May 2020, there were 998 cases of violations against the life and safety of trade union leaders (including 119 murders); (ii) between August 2019 and May 2020, there were another 141 documented acts of anti-union violence, including 18 murders and 101 death threats, with a trend for an increase in murders over the past four years; (iii) 44 per cent of the acts of anti-union violence are attributable to paramilitary groups, and 52 per cent are of unknown origin; (iv) the Office of the United Nations High Commissioner for Human Rights has recorded 55 massacres in the country since January 2020, compared with 36 in 2019, and although these acts are not directly targeted against unions, they reduce the possibilities for workers’ organizations to engage freely in their activities through fear of reprisals against them; (v) the national strike in November 2019 against the Government’s economic and social policy and calling for compliance with the Peace Agreement gave rise to disproportionate police responses; and (vi) as a result of their leading role in the strike, leaders of the Colombian Federation of Education Workers (FECODE) and the CUT, including the President of the CUT, Mr Diógenes Orjuela, have received death threats from paramilitary groups, and there has been no progress in the corresponding investigations.
With reference to protection measures for trade union leaders who are at risk, the Committee notes the allegations by the CUT and CTC of their slowness, delays and ineffectiveness. The trade union confederations allege specifically that: (i) only 38 per cent of all the requests made for protection measures by members of the union movement during 2019 and 2020 were examined; (ii) in a context of a decreasing budget allocation for the protection of members of the union movement, the protection measures that were discontinued in 2019 amount to a little over 50 per cent of the measures that have been maintained; and (iii) the real and effective participation of trade unions in the process of the determination of protection measures has been diminishing, especially in the context of the Committee for the Assessment of Risks and the Recommendation of Measures (CERREM).
The Committee notes that the ANDI once again emphasizes the significant efforts made by public institutions both for the protection of members of the trade union movement and to take action against impunity, and the substantial results achieved in this regard.
The Committee also notes the information provided by the Government concerning the scourge of anti-union violence and the action taken by institutions to address it. The Committee notes that, in general terms, the Government indicates that: (i) while substantial progress has been achieved in relation to security, it continues to face many serious challenges caused by changes in criminal organizations and their capacity for adaptation, and the persistence of conditions that are conducive to their multiplication and strengthening; (ii) as a result of the huge efforts made by public institutions, the State of Colombia has managed to achieve a significant reduction in acts of violence against members of the union movement, as the number of homicides of trade unionists fell by 84 per cent between 2001 and 2019; (iii) similarly, the State has managed to break the impunity that previously reigned, and there are now 966 convictions related to acts of anti-union violence, compared with a single conviction in 2001; and (iv) while it condemns any act of violence against unionized workers, many of the homicides of trade unionists are not related to the union activities of the victims, but are the consequence of the generalized situation of violence that still persists in the country.
The Committee notes that, with reference to the institutional initiatives taken to achieve the results outlined above, the Government once again places emphasis on the Appropriate Action Plan (PAO) adopted in 2018 for the coordination of the protection programmes and resources of all the Government institutions with responsibility for ensuring the protection of trade union and social leaders and human rights defenders. The Committee also notes the emphasis placed by the Government on the relevance of the role played by the Inter-institutional Commission for the Promotion and Protection of the Human Rights of Workers, led by the Ministry of Labour, which brings together all the relevant public institutions and the social partners. The Government indicates that, in its meeting on 23 July 2020, the Inter-institutional Commission discussed many subjects related to prevention and protection against acts of anti-union violence, penalties, and relations between workers’ federations and the police in relation to the exercise of social protest. The Government adds that 80 per cent of the action agreed upon in that meeting has already been implemented, all intended to protect the human rights of workers.
The Committee further notes the specific information provided by the Government concerning the protection of members of the union movement who are at risk, according to which: (i) during the course of 2018, a total of 447 risk evaluations were undertaken for members of the trade union movement, with 280 cases of extraordinary risk being identified, one of extreme risk and 167 cases of ordinary risk; (ii) in 2019, a total of 332 risk evaluations were undertaken for members of the trade union movement, with 206 cases of extraordinary risk being identified, one of extreme risk and 125 cases of ordinary risk; (iii) from 1 January to 31 August 2020, 190 risk assessments were carried out on members of the trade union movement, determining 109 cases of extraordinary risk, three of extreme risk and 78 of ordinary risk; (iv) the National Protection Unit (UNP) is currently providing protection for 298 trade union leaders and activists; and (v) the estimated cost of protection measures for members of the union movement was 42,889,000,054 Colombian pesos in 2018 (approximately US$12,081,623) and 39,986,188,070 pesos in 2019 (approximately US11,262,552). The Committee also notes that, in response to the observations of the CUT and the CTC, the Government indicates that: (i) not all requests for protection result in an exhaustive evaluation of the level of risk, since the UNP first verifies that the requests comply with the minimum requirements established by Decree 1066 of 2015; (ii) in 2019, 87 per cent of the security measures established the previous year were maintained; and (iii) the inter-institutional spaces for protection, such as the CERREM, where the trade union confederations are invited, continue to be fully operational. The Committee finally notes the Government’s indication that the emergence of new sources of threats resulted, during the course of 2019, in the need to strengthen protection measures and strategies for social leaders and human rights defenders.
With regard to the action taken to combat impunity, the Committee notes the Government’s specific indications that: (i) the Office of the National Public Prosecutor is continuing to follow its strategy of the investigation and prosecution of crimes against trade unionists through cases being taken up and followed by the Elite Group established in 2016; (ii) simultaneously, the Office of the Public Prosecutor, based on Directive 002 of 30 November 2017, has been implementing a strategy for the investigation and prosecution of crimes against human rights defenders, which has been strengthened since 2020 with greater human, logistical and scientific capacity, as there is an interrelationship between the two strategies given that a unionized worker engaged in human rights activities is considered a human rights defender); (iii) of the 216 cases of homicides of members of the union movement investigated between 2011 and 2020, the Office of the Public Prosecutor has a rate of resolving 42.59 per cent of the cases (a total of 60 convictions have been handed down in 44 cases, while 30 cases are being prosecuted, charges have been brought in 10 cases, six cases are under investigation with arrest warrants issued and two cases are out of time); and (iv) Colombian courts have issued a total of 966 convictions in relation to acts of anti-union violence, of which 815 are for homicides of members of the union movement (525 of which were handed down between 2011 and 2020).
The Committee also notes the information provided by the Government concerning the 34 homicides committed in 2018 and denounced by the ITUC in 2019, in which it indicates that: (i) 21 cases are under investigation, eight are being prosecuted, convictions have been handed down in four cases and one case has been shelved; and (ii) of the 34 cases denounced, 19 are registered under the strategy for the investigation and prosecution of crimes against human rights defenders (of which nine are recorded as trade union leaders). The Committee requests the Government to continue providing detailed information on the progress made in the investigation of these cases.
The Committee also takes note of the Government's comments on the observations of the CUT and the CTC regarding the authorities' response to the national strike of November 2019 and the anti-union acts that affected several union leaders active in the context of the aforementioned strike. The Committee notes that the Government indicates that: (i) the Government has always been respectful of the right to protest, and a statement reiterating the constitutional right to peaceful protest was signed at the plenary session of the Permanent Commission for Agreement on Wages and Labour Policies; (ii) the Government created spaces for dialogue with the various promoters of the strike; (iii) despite the guarantees provided by the Government, there were some outbreaks of violence aimed at destabilizing the security of citizens; (iv) following the attack to which he was subjected on 9 February 2020, the ex-president of FECODE, Mr Carlos Rivas, received complete emergency personal security measures as of 19 February 2020; and (v) the President of the CUT, Mr José Diógenes Orjuela also has complete personal security measures.
The Committee once again acknowledges the significant efforts made by the public authorities, both with regard to the protection of members of the trade union movement who are at risk and in the investigation and punishment of acts of anti-union violence. The Committee once again particularly welcomes in this respect the active commitment of the various relevant State bodies, and the initiatives taken to improve the effectiveness of State action through inter-institutional coordination and the consultations held with the social partners in the context of the Inter-Institutional Human Rights Commission. In particular, the Committee notes the 815 convictions handed down in relation to the homicide of members of the trade union movement since 2001 and the substantial increase in their numbers since 2016.
Nevertheless, the Committee expresses deep concern at the persistence of many homicides of members of the trade union movement and other acts of anti-union violence in the country, as well as the death threats against national and local trade union leaders in a context of the growing number of attacks against social leaders in general. The Committee takes special note of the indications by the trade union confederations that unions in agriculture, education, energy and mining are particularly affected, and the references by the Government and the trade union confederations to the current changes in the origins of anti-union violence. While being aware of the complexity of the challenges faced by the institutions responsible for criminal investigation, the Committee is once again bound to note the absence of data on the number of convictions of the instigators of acts of anti-union violence and it once again emphasizes in this regard the essential importance of the identification and conviction of the instigators of these crimes in order to break the cycle of anti-union violence. In view of the magnitude of the challenges described, and acknowledging the significant action taken by the public authorities, the Committee urges the Government to continue strengthening its efforts and the resources allocated for the provision of adequate protection for all trade union leaders and members who are at risk, and for their organizations, with full attention and the necessary resources being directed at the sectors most affected by anti-union violence. Emphasizing the significant increase in the number of convictions, the Committee also urges the Government to continue taking all the necessary measures to ensure that all acts of anti-union violence, including homicides and other acts, occurring in the country are investigated and that the instigators and perpetrators are convicted. The Committee particularly hopes that all the necessary further measures will be taken and the necessary resources will be allocated to significantly improve the effectiveness of the investigations and criminal proceedings undertaken for the identification and punishment of the instigators of acts of anti-union violence. The Committee requests the Government to provide detailed information on this subject. The Committee finally requests the Government to provide information on the allegations made by the trade union confederations concerning the alleged acts of “espionage" (such as surveillance) against a series of trade union leaders.
Collective compensation measures for the trade union movement. In its previous comment, the Committee noted with interest the establishment of the Standing Dialogue Forum for collective compensation for the trade union movement (hereinafter the Forum). The Committee requested the Government to continue providing information on the work of the Forum and on the implementation in practice of collective compensation measures for the trade union movement in view of the violence committed against it. The Committee notes the Government’s indications that: (i) on 29 November 2019, a second session of the Forum was held to discuss its operation and the action necessary to make progress in the process of the Office of the Public Defender taking a statement from the trade union movement, which is an essential stage to allow the entry of the collective measures in the Single Record of Victims; (ii) the Office of the People’s Defender, the CUT, CGT, CTC and FECODE met in December 2019 to review the information at the disposal of the trade union movement for inclusion in the statement; (iii) at the request of the trade union movement, the third session of the Forum was postponed on two occasions so that another preparatory meeting could be held by the trade union movement with the Office of the People’s Defender and the Victims Unit; (iv) the third meeting of the Forum took place virtually on 23 April and 4 May 2020 with the leadership of the Victims Unit; (v) as agreed at the 3rd meeting of the Forum, two technical meetings were subsequently held with the trade union movement in July and September 2020 to review the progress made in the systematization of information; (vi) the various meetings abovementioned made it possible to recruit the necessary technical personnel to go forward with the process and (vii) the Victims Unit has been managing the 4th meeting of the Forum since October 2020, awaiting a response from the trade union movement to set a date. The Committee notes that the Government reiterates its political will to provide compensation to the trade union movement, and emphasizes the importance of the latter making the statement referred to above to the Office of the People’s Defender so that the legal procedures can go forward.
The Committee also notes the allegations by the CUT and the CTC that: (i) following the adoption of the protocol for the establishment of the Forum, it has not met since and has not made progress with any of the action assigned to it after a year of existence due to the lack of initiative and political will by the Government; (ii) despite the pandemic, the process could have continued virtually; (iii) the necessary technical personnel have not been recruited to carry forward the process; and (iv) the Forum also has to make progress in facilitating the submission by the trade unions of the formal statement by the union movement to the Office of the People’s Defender.
Taking note of the respective positions of the Government and the trade union confederations concerning the work carried out by the Forum in 2020, the Committee expects that the collective compensation measures for the trade union movement, in view of the violence committed against it, will be implemented in the near future. The Committee requests the Government to continue providing information in this regard.
Section 200 of the Penal Code. In its previous comment, the Committee noted the information provided by the Government on the impact of the legislative and institutional initiatives adopted to facilitate the application of section 200 of the Penal Code, which establishes penal sanctions for a series of acts that are contrary to freedom of association and collective bargaining. The Committee previously noted in particular that, as a result of the special expedited criminal procedure established by Act No. 1826 of 12 January 2017 and the joint work plan developed since August 2016 by the Office of the Public Prosecutor and the Ministry of Labour, the examination had been concluded of 86 per cent of the 2,530 cases of alleged violations of section 200. However, the Committee also noted the allegations of the CUT, CTC and CGT that there is complete impunity in relation to the enforcement of section 200 as there have been no convictions. It also noted the Government’s reply in this respect indicating that ten cases were before the courts, as an illustration of the absence of impunity.
The Committee notes that the Government and the ANDI provide updated data on the outcome of investigations into alleged violations of section 200 of the Penal Code. The Government indicates that, of the 2,727 cases of potential violations of section 200 of the Penal Code referred to the Office of the Public Prosecutor between 2011 and 20 October 2020, investigations have been concluded for 91.02 per cent and only 8.98 per cent are still under investigation. The Government adds that the conclusion of the cases is due to: (i) the shelving of criminal prosecutions (1,363 cases, establishing in 61,78 per cent of such cases that the criminal conduct had not existed); (ii) the ending of prosecution due to cases being time barred or the withdrawal of charges (520 cases); (iii) the withdrawal of charges by the worker or trade union (441 cases); and (iv) conciliation (158 cases, the number of which has increased significantly since August 2016). The Committee also notes the Government’s indication that it does not agree with the allegations made by the trade union confederations concerning impunity in respect of violations of section 200, as more than 90 per cent of the investigations have been completed and the outcomes indicated above have been presented to the Inter-institutional Human Rights Commission, which is led by the Ministry of Labour and in which the trade union confederations participate.
The Committee notes the indication by the CUT and CTC that the figures provided by the Government do not include data on the charges brought and the prosecution of cases, which is necessary to assess the effectiveness in practice of investigations into crimes committed in violation of section 200 of the Penal Code. The trade union confederations add that the enforcement of section 200 has not been referred to the trade union movement for consideration in 2020 as no meetings have been held on the subject.
While once again welcoming the increase in the number of cases resolved through conciliation and noting that, in its responses to the observations of the CUT and the CTC, the Government refers to the existence of eight cases currently before the courts, the Committee continues to note the absence of convictions for violations of section 200 of the Penal Code despite the very high number of criminal charges brought in this respect since 2011. In light of the above, the Committee once again requests the Government to engage, together with the Office of the Public Prosecutor and the social partners, in an assessment of the effectiveness of section 200 of the Penal Code and its enforcement and to report the outcome and any action taken as a result.
Articles 2 and 10 of the Convention. Trade union contracts. With reference to trade union contracts, the contractual concept envisaged in Colombian legislation under which one or more unions undertake to provide services or perform work through their members for one or more enterprises or employers’ organizations, the Committee recalls that in previous years it requested the Government to provide its comments on the observations of the CUT and CTC according to which trade union contracts perpetuate and extend unlawful employment mediation and undermine trade union action through the creation of false unions.
The Committee recalls in this respect that, in its most recent comment, it noted: (i) the Government’s indication that trade union contracts are a legal concept the validity of which has been confirmed by the high courts of the country and which enable unions to participate in employment generation, and that guarantees exist to prevent the abuse of trade union contracts by false unions as a result of the provisions of Decree No. 0636 of 2016 and supervision by the labour inspection services in relation to employment mediation; (ii) the similar position of the ANDI, which also emphasizes the importance of respecting the independence of trade unions as to whether or not they conclude trade union contracts; (iii) the reiterated position of the CUT and CTC in their allegations that trade union contracts undermine the purpose and independence of trade unions, are an obstacle to the effective exercise of trade union rights by workers and permit the maintenance of unlawful employment mediation in the health sector; and (iv) the position of the CGT that, although trade union contracts may be a valid precept for strong trade unions, in practice a substantial number of associated work cooperatives have been converted into false unions to conclude trade union contracts, particularly in the health sector.
The Committee recalls that, on the basis of the elements noted above, it previously: (i) observed that within the framework of the very specific precept of trade union contracts, through which a trade union takes direct responsibility, through its members, for a productive activity on behalf of an enterprise, the union is responsible for organizing the work of its members and for providing them with the benefits corresponding to the work performed; (ii) noted that both the Government and the three trade union confederations (the CUT, CTC and CGT) agree that over 98 per cent of trade union contracts are concentrated in the health sector; and (iii) observed with deep concern that the three trade union confederations consider that associated work cooperatives, which previously engaged in unlawful employment mediation in the health sector, have taken on the form of false unions so as to be able to continue such activities through trade union contracts. On the basis of the above, the Committee emphasized that the exercise by a workers’ union of the power of management and decision-making concerning the employment of its members is likely to generate a conflict of interests with its function of defending the claims of its members. The Committee therefore requested the Government to conduct a detailed assessment of the use of trade union contracts, particularly in the health sector, and to take the necessary measures to ensure that the precept of trade union contracts does not undermine the trade union rights of workers.
The Committee notes that the Government reiterates the comments made in 2019, indicating that: (i) trade union contracts enable trade unions to participate in the management of enterprises and to promote employment; (ii) within the framework of trade union contracts, two types of relations arise: the first is between the enterprise and the trade union, which is a manifestation of collective relations, as governed by collective labour standards; the other arises between union members and the union, which is a special relationship that benefits from special protection through the minimum guarantees and basic constitutional principles governing labour, without constituting a labour relationship, as trade union contracts did not emerge for the purpose of transforming trade unions into a new type of employer; (iii) workers covered by a trade union contract are already covered by a collective agreement concluded between the employer and the union; (iv) the various provisions of Decree No. 036 of 2016, and particularly the rule that a trade union contract cannot be concluded unless a trade union has been established for at least six months before the conclusion of the contract, prevents a trade union from being created for the sole purpose of the immediate conclusion of trade union contracts; (v) the Ministry of Labour exercises control over cases that are denounced as unlawful employment mediation, which include cases of the undue use of trade union contracts; (vi) the Ministry of Labour is in the process of adopting the plan of action of the Public Policy for the prevention, inspection, supervision and control of labour: Undertakings for Decent Work 2020-30, adopted on 20 February 2020, which includes action intended to reinforce trade union freedoms involving supervision of the use of trade union contracts; (vii) there were 567 trade union contracts in force between January and June 2020, of which 95.8 per cent were in the health sector; (viii) 11 disputes were recorded concerning the undue use of trade union contracts (seven are at the preliminary investigation stage, charges are being prepared in three cases and one case is at the notification stage); (ix) with reference to inspections focussing on the supervision of trade union contracts, current trade union contracts were classified by economic sector, focussing on health, manufacturing and agriculture; (x) with a view to inspecting 20 per cent of the trade union contracts in force, the main focus was on export sectors; and (xi) as a result of the pandemic, it was decided to suspend the inspections, for which reason there is no data on inspections of trade union contracts between January and June 2020. The Committee further notes that the ANDI continues to express a position similar to that of the Government, once again emphasizing that it is necessary to respect the independence of trade unions to conclude trade union contracts, as the CGT trade union confederation, for example, has done.
The Committee finally notes that the CUT and CTC reiterate in their most recent observations that the concept of trade union contracts, which involve an enterprise providing additional finance to the trade union: (i) blurs the purpose for which trade unions are established; and (ii) places constraints on their independence in relation to the enterprise and disguises the nature of the true employer. The Committee notes that the two trade union confederations also consider that: (i) the proliferation of trade union contracts is persisting since, between January and June 2020, it was reported that 567 trade union contracts were registered; (ii) up to now the Government has not undertaken any reform of the rules to limit their use, and has certainly not proposed any reform for their elimination from Colombian legislation; (iii) the labour inspection services have been reluctant to consider the investigation of trade union contracts as unlawful means of employment mediation and, when carrying out inspections, they confine themselves to formal requirements concerning the conclusion and validity of the trade union contract; and (iv) up to the present, there is no indication that any penalties have been imposed against any of the over 1 700 trade union contracts in existence in the country, which are concluded with supposedly independent unions that are not known to the real trade union movement.
The Committee takes due note of the information provided by the Government and the social partners with regard to the precept of trade union contracts. The Committee observes that the various actors reiterate their respective positions and notes that there have not been specific changes in law or practice. The Committee notes in particular that the use of trade union contracts continues to be concentrated in 95 per cent of cases in the health sector. In this regard, while being fully aware of the great obstacles to labour inspection activities arising out of the COVID-19 pandemic, the Committee observes that the Government does not refer to any priority in planning action to supervise the use of trade union contracts in the sector. In light of the above, once again emphasizing that the attribution to a workers’ union of the power of management and decision-making concerning the employment of its members is likely to generate a conflict of interest and may therefore endanger its capacity to fulfil the specific functions of trade unions to support and defend independently the claims of their members in relation to employment and terms and conditions of work, the Committee requests the Government to: (i) plan and conduct in the near future a detailed assessment of the use of trade union contracts, in particular in the health sector; and (ii) after sharing the results of this assessment with the social partners, take the necessary measures, including legislative measures where necessary, to ensure that the precept of trade union contracts does not undermine the trade union rights of workers and is not used for purposes that are incompatible with Article 10 of the Convention. The Committee requests the Government to provide information on all progress achieved in this regard.
Article 4. Judicial cancellation of trade union registration. In its previous comment, the Committee requested the Government to provide its comments on the statements made by the CUT and CTC that the expedited procedure set out in section 380(2) of the Substantive Labour Code for the cancellation of the registration of trade unions does not offer adequate procedural safeguards.
The Committee notes the Government’s description of the various stages and time limits of the expedited procedure for the cancellation of the registration of trade unions established by the Substantive Labour Code. The Government indicates in this respect that: (i) this judicial procedure, which recognizes the right to contest and appeal the decision of the court of first instance, which suspends the decision, sets out constitutional guarantees of due process; (ii) with regard to the allegations that certain enterprises take advantage of this procedure to undermine freedom of association, the courts rule independently based on an examination of each individual case, for which reason it cannot be inferred that there are systematic cancellations of the registration of trade unions; and (iii) in its ruling C-096/93, the Constitutional Court considered that section 380 of the Substantive Labour Code complied with Article 4 of the Convention, which prohibits the administrative dissolution or suspension of trade union organizations. The Committee notes that the CUT and CTC: (i) allege once again that the very short time limits set out in section 380(2) of the Substantive Labour Code do not provide adequate procedural guarantees to unions; (ii) various recent cases show that certain enterprises make use of the expedited procedures to endeavour to try and eliminate trade unions in reprisal for engaging in allegedly unlawful work stoppages; and (iii) call for a review of the Substantive Labour Code to limit the current possibility to dissolve trade unions for reasons and through procedures that are incompatible with the Convention.
The Committee takes due note of the elements advanced by the Government concerning the procedure established by section 380(2) of the Substantive Labour Code, and particularly the existence of a right of appeal with suspensive effect. The Committee also notes that the trade union confederations refer in their observations to court procedures on the basis of section 380(2), but not to dissolution decisions under the procedure. The Committee also observes that: (i) the time limits set out in section 380(2) for trade unions subject to action for their dissolution to put forward their defence and possibly to appeal against a decision adopted by a court of first instance are extremely short (five days in each case); and (ii) the CUT and CTC also denounce the reasons for which the expedited procedure for the judicial dissolution of a trade union may be set in motion, and particularly alleged unlawful work stoppages. Recalling once again that the cancellation of trade union registration constitutes an extreme form of interference that must be confined to serious violations of the law after exhausting other less drastic means of action for the organization as a whole and that it is important for such measures to be accompanied by all the necessary guarantees that can only be ensured by normal judicial procedures, the Committee requests the Government to indicate, on the one hand, the reasons that could justify the application of the very short procedural time limits set out in section 380(2) of the Substantive Labour Code and, on the other, the extent to which a work stoppage that is considered to be unlawful can constitute a reason for the dissolution of a trade union.
Articles 3 and 6. Right of workers’ organizations to organize their activities and to formulate their programmes. Legislative issues. The Committee recalls that for many years it has been referring to the need to adopt measures to amend the legislation in relation to: (i) the prohibition of strikes by federations and confederations (section 417(i) of the Substantive Labour Code) and in a very broad range of services that are not necessarily essential in the strict sense of the term (section 430(b), (d), (f) and (h); section 450(1)(a) of the Substantive Labour Code; Taxation Act 633/00 and Decrees Nos 414 and 437 of 1952, 1543 of 1955, 1593 of 1959, 1167 of 1963, and 57 and 534 of 1967); and (ii) the possibility to dismiss workers who have intervened or participated in an unlawful strike (section 450(2) of the Substantive Labour Code), including in cases in which the unlawful nature of the strike is a result of requirements that are contrary to the provisions of the Convention.
With reference to the prohibition of strikes in a series of services that are not necessarily essential in the strict sense of the term, the Committee notes that the Government states, firstly, that the right to strike, even though it is a fundamental right of trade union organizations, is not an absolute right, and that it may therefore be subject to limitations as in the case of areas where essential public services are provided. The Commission further notes that the Government reports on the examination by the House of Representatives of Bill No. 071 of 2019 amending the Substantive Labour Code with a view to harmonizing the right to strike with the Conventions on freedom of association of the International Labour Organization, which was transmitted to the House of Representatives on 24 July 2019 and had its first reading on 17 February 2020. The Government indicates that, in its explanations introducing the Bill, the Ministry of Labour considered it necessary to define essential public services and that the Bill was discussed by the Standing Committee for Dialogue on Wage and Labour Policies. In this regard, the Committee notes that the Government states that there is currently no tripartite consensus to carry out the legislative amendments requested by the workers' federations with regard to strikes and that, on this point, it is appropriate to take into account both the position of the trade union organizations and that of the employers' organizations. The Committee notes that the Government finally describes in detail ruling No. SL 1680-2020 of 24 June of 2020 of the Supreme Court of Justice respecting a strike in the health sector and emphasizes that it: (i) indicates that strikes are not prohibited in the whole health sector, but strictly and exclusively in those services the interruption of which would really endanger the life or health of the population; (ii) changes its criteria and considers that the procedure established in sections 444 and 445 of the Substantive Labour Code, which establishes a series of requirements for the exercise of the right to strike, only applies to contractual strikes seeking the conclusion of collective agreements; and (iii) considers that the procedure cannot be applied to other types of strikes, such as those attributable to employers, protesting against policy or sympathy strikes, as sections 444 and 445 were adopted prior to the 1991 Constitution at a time when the legislator had not considered types of strikes other than contractual strikes.
The Committee notes that the ANDI, after expressing the view that the right to strike is not covered by the Convention, once again expresses the opinion that Colombian legislation and case law on strikes in essential services are fully satisfactory and that the country has an independent judicial system which examines each case in the event of disputes between employers and workers. The Committee finally notes that the CUT and CTC also refer in their observations to ruling No. SL 1680-2020, in which respect they emphasize in particular that the Supreme Court: (i) recognizes the right to strike as a fundamental human right; and (ii) takes as a basis the position of the supervisory bodies of the ILO in examining whether, in the specific case before it, the work stoppage effectively and directly endangered the life, health or personal safety of the population. The Committee notes that the CUT and CTC also affirm that: (i) the ruling only applies between the parties and, as it was issued by a court of cassation, does not affect the standing of the legislative provisions on the subject; (ii) up to now, there has been no legislative proposal by the Government to amend the legislative provisions that restrict and are in violation of the right to strike; and (iii) although the examination is continuing of Bill No. 071 of 2019, proposed by the trade union confederations to bring the national legislation on the right to strike into conformity with international ILO standards, the Government majority has prevented discussion of the Bill and a vote on it with the aim of shelving it for a second time.
The Committee takes due note of the observations made by the Government and the social partners. The Committee notes with interest ruling No. SL 1680-2020 of the Supreme Court, provided by the Government and the trade union confederations, which is based on the fundamental nature of the right to strike for the application and interpretation of legal provisions establishing the conditions for its exercise and setting its limits. In this regard, the Committee recalls that in its previous comment it noted that both the Constitutional Court, in relation to the oil sector, and the Supreme Court, with regard to the various services defined as essential in the legislation, have called for a revision of the legislation to better limit the restrictions imposed on the exercise of the right to strike. However, the Committee continues to note that no specific progress has been made with the legislative reforms requested by the Committee in relation to strikes in essential services. The Committee recalls that in its previous comment it indicated in this regard that it considers that: (i) essential services in which the right to strike may be restricted or prohibited are those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (ii) although the concept of essential services is not absolute, the Committee has considered that sectors such as oil and public transport do not constitute essential services in the strict sense of the term, but are public services of overriding importance in which the maintenance of a minimum service may be required. The Committee therefore firmly expects that the Government will take the necessary measures in the near future to revise the legislative provisions referred to previously respecting essential services as indicated in its comments. The Committee requests the Government to provide information on any progress made in this regard and reminds it that it may have recourse to the technical assistance of the Office.
With reference to section 417 of the Substantive Labour Code, which prohibits federations and confederations from calling strikes, the Committee notes the Government’s indication that the role of federations and confederations is not essentially to take up a position in relation to a labour dispute concerning a specific enterprise or economic activity, but to represent and promote trade union interests in general, without the intention of exercising the right to strike. The Committee notes that both the Government and the ANDI also refer once again to rulings Nos C-797 of 2000 and C-018 of 2015, in which the Constitutional Court emphasized that federations and confederations discharge the functions of providing advisory services to their member organizations and that, in the context of an economic dispute with an employer based on a set of claims, it is constitutionally justified for federations and confederations to be excluded from a decision to call a strike.
On the other hand, noting the persistent criticisms made by national and international trade union confederations concerning the prohibitions established in section 417 of the Substantive Labour Code, the Committee recalls once again that, under the terms of Article 6 of the Convention, the guarantees of Articles 2, 3 and 4 apply fully to federations and confederations, which must therefore be able to determine their programmes in full freedom. The Committee also recalls that, in accordance with the principle of trade union independence as set out in Article 3 of the Convention, it is not for the public authorities to determine the respective roles of first-level unions and of the federations and confederations to which they are affiliated. Finally, the Committee emphasizes that, as indicated in ruling No. 1680 of 2020 of the Labour Chamber of the Supreme Court, which is broadly described by the Government in its report, the right to strike is not limited to collective disputes relating to the negotiation of an enterprise collective agreement, and therefore in situations in which the defence of the collective interests of workers goes beyond the scope of a single enterprise it is especially important for federations and confederations to be accorded all the guarantees envisaged in the Convention. In light of the above, the Committee once again requests the Government to take the necessary measures in the near future to amend section 417 of the Substantive Labour Code, which prohibits the right to strike of federations and confederations. The Committee requests the Government to provide information on any developments in this regard.
Finally, the Committee notes the information provided by the Government on the examination by the international affairs subcommittee of the Standing Committee for Dialogue on Wage and Labour Policies of some of the subjects raised in the present comment. The Committee once again hopes that the work of the subcommittee will facilitate the adoption of the various measures requested by the Committee to give full effect to the Convention. The Committee recalls that the Government may request the technical assistance of the Office in this regard.
The Committee is raising other matters in a request addressed directly to the Government.
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