Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Colombia (Ratification: 1976)

In its previous comment, the Committee noted the criticisms of the trade union confederations concerning the excessive slowness and deficiencies of the arbitration system in relation to collective bargaining and the Government’s indication that it was examining the possibility of a legislative amendment to overcome the difficulties that had been observed in the operation of the procedure. The Committee therefore requested the Government to engage in discussions with the social partners to improve the efficiency of mediation, conciliation and arbitration procedures in relation to collective labour relations.

The Committee notes that, after recalling the legislative framework applicable to arbitration procedures, the Government indicates that: (i) a series of initiatives have been taken to facilitate the various administrative processes of the procedure, and particularly the increased use of information technologies and virtual platforms; (ii) in 2019, the Ministry of Labour received 171 requests to set up arbitration tribunals and convened 87 tribunals over the same period; (iii) during 2020, it received 80 requests and convened 69 arbitration tribunals; and (iv) between 1 January and 26 August 2021, it received 120 requests and convened 68 tribunals.

The Committee notes that the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT) reiterate their criticism of the procedure, and denounce in particular: (i) its excessive slowness and the various possibilities that exist throughout the process for further delays; (ii) the procedure for the appointment of the arbitrators, which they indicate is unfavourable to workers; (iii) the inadequacies of Decree No. 17 of 2016 which, among other criticisms, defines excessively restrictively the powers of arbitrators and does not require specific training or experience of collective disputes; and (iii) the suspensive effect of appeals to set aside arbitration awards, which makes it possible to delay their effective application for years. Finally, the trade union confederations indicate that arbitration tribunals to resolve collective disputes should be voluntary and convened with the agreement of both parties.

The Committee finally notes the observations of the National Employers’ Association of Colombia (ANDI), which indicates that, although arbitration tribunals have various disadvantages in practice associated with malpractices and the operational limitations of the public institutions involved in their operation, they are nevertheless a mechanism for the protection of the collective rights of workers. The ANDI adds that the list of arbitrators drawn up by the Supreme Court of Justice includes lawyers, who are often close to trade unions. The Committee notes that the ANDI goes on to identify a series of operational difficulties in the process: (i) the delays in establishing arbitration tribunals; (ii) the lack of requirements for the professional competence of arbitrators; (iii) the withdrawal of claims and the commencement of a new collective dispute by trade unions, which has the effect of prolonging indefinitely the special protection of workers against dismissal; (iv) the very long duration of the arbitration process; and (v) the great length of the process for setting aside arbitration awards in the event of appeals. The Committee finally notes that the ANDI proposes, through tripartite social dialogue and with ILO support, the development of a mechanism for the training of arbitrators clearly focused on the resolution of disputes.

Recalling once again the importance for the effective promotion of collective bargaining of the existence of effective machinery for the voluntary settlement of collective disputes and observing that both workers’ organizations and employers’ organizations are calling for a series of modifications in this respect, particularly in relation to the need to make the various stages of the process significantly more flexible, the Committee: (i) requests the Government to engage in discussions with the social partners with a view to improving the efficiency of mediation, conciliation and arbitration procedures in relation to collective labour relations, including through legislative and regulatory reforms; and (ii) invites the Government to strengthen the mechanisms for the training of arbitrators. The Committee requests the Government to provide information in this regard and reminds it that it can avail itself of the technical assistance of the Office.