Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Colombia (Ratificación : 1976)

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The Committee notes the joint observations of the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT), received on 1 September 2023, and the observations of the International Trade Union Confederation (ITUC), received on 27 September 2023, as well as the corresponding comments by the Government. The Committee notes that these various observations refer to matters addressed by the Committee in the present comment, as well as allegations of violations of the Convention in practice.

The Committee also notes the observations of the International Organisation of Employers (IOE), received on 31 August 2021, on the discussions held in the Conference Committee on the Application of Standards (hereinafter Conference Committee) in relation to the application of the Convention in June 2021, and the observations of the National Employers Association of Colombia (ANDI), received on 1 September 2023, relating to matters addressed in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, May-June 2021)

The Committee notes the discussion held in the Conference Committee in June 2021, in which it welcomed the efforts made by the Government for the application in law and practice of the Convention and the positive steps taken by the Government to address the situation of violence in the country, and encouraged the Government to continue to engage in measures to ensure a climate free from violence. The Conference Committee requested the Government to ensure that the Standing Dialogue Forum for Collective Compensation for the Trade Union Movement was convened and worked to fully carry out its mandate.

Legislative reform. The Committee notes the Government’s indication that a process of legislative reform is being carried out, one of the objectives of which is to give full effect to the ILO Conventions that have been ratified. The Committee notes that the Government communicated the content of the draft legislation submitted to the Congress of the Republic on 24 August 2023. The Committee observes that the draft text that was submitted follows on from a first draft text referred to the Congress of the Republic in March 2023 and set aside in July 2023, on which the Office had made technical comments. The Committee refers first to the provisions of the draft text that are related to the points raised in its previous comments on the application of the Convention, before turning to the examination of other relevant aspects of the draft text.

Trade union rights and civil liberties. The Committee recalls that for many years, in the same way as the Committee on Freedom of Association, it has been examining allegations of violence against trade unionists and the situation of impunity in this regard. The Committee notes, first, the information provided by the Government concerning 34 murders committed in 2018 and denounced by the ITUC in 2019, in relation to which it indicates that: there have been convictions in eight cases, and one acquittal; seven cases are before the courts; one is under investigation with the issue of an arrest warrant; eleven cases are under investigation; four cases have been shelved; one case has been referred to the indigenous justice system, and one case has been terminated due to a death. The Government adds that, between 2020 and 2023, the Office of the Public Prosecutor has reported 45 cases of murders of members of the trade union movement, in relation to which it indicates that: the sentences were handed down and are being implemented in four cases; six cases are before the courts; in seven cases, charges have been brought; six cases are under investigation with arrest warrants issued by the courts, while one case has been terminated due to the death of the suspect, which amounts to the facts being discovered in 53.33 per cent of the murders. The Committee also takes due note of the information provided by the Government on the strategies implemented by the Office of the Public Prosecutor for the effective investigation of murders, threats and other acts of anti-union violence. The Committee notes the emphasis placed by the Government on the complexity of managing investigations of criminal threats and the information provided on the action taken, including: the establishment in 2021 of a Threats Group in the Human Rights Department, which has ten prosecutors; the existence of a comprehensive strategy for threats against union leaders, with the active participation of a specialized prosecutor and coordination with the National Protection Unit; and the specific attention accorded by the Threats Group to cases involving the Colombian Federation of Education Workers (FECODE), with a prosecutor being detached and the development of a specific strategy.

The Committee also notes the information provided by the Government on the action taken by the National Protection Unit to guarantee the life and safety of trade union leaders and activists who are at risk through the Prevention and Protection Programme which, between 1 September 2020 and 14 May 2023 responded to the following number of requests: 1,100 in 2020, 726 in 2021, 1,196 in 2022 and 493 in 2023, making a total of 3,515. The National Protection Unit undertook 1,823 individual risk assessments of situations which were then classified as extraordinary, extreme and ordinary and took protection measures for around 300 beneficiaries a month, provided means of communication, protective vests, call buttons, protection personnel, conventional and armoured vehicles.

The Committee notes that the CUT, CTC and CGT denounce the persistence of stigmatization and violence against trade unionists. They allege that in 2022 there were 287 cases of anti-union violence, including 238 cases of threats, 33 cases of relocation, 29 murders, 16 cases of attacks with or without injuries, seven cases of harassment, five kidnappings and one disappearance. The unions report an increase of 46.68 per cent in reports of acts of anti-union violence in relation to 2021.

The Committee further notes the indications by the ITUC that in 2021 and 2022there were 13 murders of trade unionists; six attempted murders; 99 death threats; and eight arbitrary detentions of trade unionists. The Committee notes the information provided by the ANDI indicating that the figures provided by the Government reflect the efforts carried out by the various institutions to make progress in the protection of union leaders and to combat impunity.

The Committee expresses deep concern at the persistence of so many murders and other acts of anti-union violence against members of the trade union movement in the country. The Committee notes the allegations by the trade union confederations of the frequency of acts of anti-union violence, particularly in the education sector.

While aware of the complexity of the challenges faced by the institutions responsible for criminal investigations and the considerable efforts made to maximize the effectiveness of the investigations, the Committee is nevertheless once again bound to note the absence of data on the number of convictions of the instigators 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.

While recognizing the significant action that the public authorities are continuing to take, 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. While taking due note of the sentences handed down, the Committee also urges the Government to continue taking all the necessary measures to ensure that all acts of anti-union violence, including murders and other acts, that occur 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.

Collective compensation measures for the trade union movement. The Committee notes the information provided by the Government and the trade union confederations on the establishment of the Standing Dialogue Forum for Collective Compensation for the trade union movement. The Government indicates that the trade union movement is officially recognized as eligible for to receiving compensation and that this is a priority for the Government. The Committee also notes the observations of the trade union confederations, which consider that, despite the establishment of the Forum, there is insufficient pressure to ensure the real and comprehensive compensation of the trade union movement. The Committee notes the information provided by the Government and the trade union confederations and hopes that, in light of the acts of violence suffered by the trade union movement, measures of collective compensation will be adopted in practice. The Committee requests the Government to continue providing information on this subject.

Section 200 of the Penal Code. In previous comments, after noting the failure to impose penal sanctions for violations of this provision of the Penal Code, despite the very high number of complaints of criminal offences made since 2011, the Committee previously requested 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 (which establishes penal sanctions for a series of acts that are contrary to freedom of association and collective bargaining) and its enforcement and to report the outcome and any action taken as a result.

The Committee notes the Government’s indication that, within the context of the Inter-institutional Human Rights Commission, on which workers’ and employers’ organizations and the Government are represented, information has been provided on the progress made in the investigations related to section 200 of the Penal Code. The Government indicates that between 2017 and March 2023, the Office of the Public Prosecutor received 1,279 referrals, of which 1,053 cases had the following outcomes: (i) four cases resulted in acquittals, each of which were appealed; (ii) 91 cases resulted in conciliation (conciliation takes place before a prosecutor or conciliator and if there is an agreement between the parties it has the effect of res judicata); (iii) 124 cases were not pursued (the Government indicates that in these cases there is usually a negotiated outcome between the worker and the enterprise); (iv) 624 cases were shelved (either due to the absence of a criminal act or because the complainant had no legal standing); (v) 210 cases were terminated for other reasons; and (vi) 226 cases are still active, of which 160 are at the pre-trial stage, 62 are under investigation and four are currently before the courts.

The Government also indicates the following action undertaken during 2022 in relation to section 200 of the Penal Code: (i) capacity-building through specific training courses for prosecutors and investigators; (ii) the development of a “Schedule for the investigation and criminalization of the crime of violating the rights of assembly and association”; (iii) action to promote cases and support days for departmental units throughout the country; and (iv) support for the Office of the Public Prosecutor in 91 cases in which reconciliation was achieved between 2017 and 2023. The Government indicates that there are plans to continue strengthening investigations and disseminating the above Schedule.

The Committee also notes the observations of the trade union confederations, which indicate that: (i) the percentage of cases in which there is conciliation is very low in relation to the number of complaints lodged; (ii) over half of the cases have been shelved; (iii) in 26 per cent of the cases, prosecution was ended (which may also be due to the lack of investigations by the State); and (iv) all the active cases from 2021, 2022 and 2023 are at the investigation stage, without any signification progress or clear information from the Office of the Public Prosecutor, for which reason, despite the efforts reported by the Government to improve the action taken in relation to this type of crime, it is still ineffective.

In light of the foregoing, the Committee observes that, although progress has been made in dealing with a significant number of criminal actions for violations of section 200 of the Penal Code, it has still not been informed of any convictions, despite the very high number of criminal charges brought since 2011 under this section. In light of the foregoing, the Committee requests the Government, together with the Office of the Public Prosecutor and the social partners, to engage in an exhaustive assessment of the criminal offence set out in section 200 of the Penal Code and its enforcement with a view to examining the possible need for legislative or institutional adjustments. The Committee requests the Government to provide information on the findings of this assessment.

Articles 2 and 10 of the Convention. Trade union contracts. The Committee recalls that, in light of the allegations made by the trade unions, it has been examining the compatibility with the Convention of the legislation on trade union contracts, a concept under which one or more unions undertake to provide services or perform work through their members for one or more enterprises or employers’ organizations. After observing 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 terms and conditions of employment and work, the Committee requested the Government to: (i) plan and conduct in the near future a detailed assessment of the use of trade union contracts, particularly in the health sector; and (ii) take the necessary measures, including legislative measures where necessary, to ensure that the concept 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 notes the Government’s indication that, in accordance with the commitments made to the Organisation for Economic Co-operation and Development and other institutions, the draft labour reform referred to the Congress of the Republic provides for the amendment of section 482 of the Substantive Labour Code to prohibit the conclusion of trade union contracts for the purpose of attributing to workers’ organizations the implementation of works or services for third parties in exchange for payment.

The Committee also notes the Government’s indication that: (i) 1,652 trade union contracts were concluded in 2020, 2,898 in 2021, 2,611 in 2022 and 1,385 between 1 January 2023 and 30 June 2023, making a total of 8,456 (of which 7,607 are in the health sector); (ii) through Decision No. 0345 of 20 February 2020, the Ministry of Labour adopted a policy to reinforce the capacity to identify unlawful labour mediation and other forms of contracts that are prejudicial to the rights of workers; and (iii) between 2020 and 2023, there were 24 administrative investigations into the undue use of trade union contracts.

The Committee notes that the trade union confederations, the CUT, CTC and CGT: (i) once again denounce the continued use of trade union contracts concluded by false unions as tools for the unlawful intermediation of work; (ii) indicate that, although the draft legislative reform prohibits the use of such contracts, the provision still has not been adopted; (iii) note that barely 1 per cent of the enterprises that have concluded trade union contracts have been subject to inspections by the Ministry of Labour, with only 24 investigations being opened; and (iv) emphasize the need to abolish trade union contracts, especially in sectors such as health and agriculture, where they allege the existence of serious forms of unlawful subcontracting.

The Committee also notes the observations of the ANDI, which indicates that trade union contracts are not in contravention of the provisions of the Convention and that they enable trade unions to maintain a constant dialogue with employers, have more members and generate more benefits for workers.

The Committee takes due note of the various elements set out above. The Committee notes in particular the persistent concern expressed by the three principal trade union confederations in the country concerning the effects of trade union contracts and regrets to note the low level of activities undertaken by the labour inspection services in this regard. In light of its previous comments on the risk of the use of trade union contracts undermining trade union activities and the protection of the trade union rights of workers, the Committee notes with interest that the draft labour reform currently before the Congress envisages the elimination of trade union contracts through an amendment to section 482 of the Substantive Labour Code.The Committee firmly expects that the current labour reform process will contribute to the elimination of the risks to trade union action arising out of the concept of trade union contracts. Observing that section 482 of the Substantive Labour Code currently continues to be in force, the Committee also urges the Government to ensure a significant increase in inspections focusing on the use of trade union contracts. The Committee requests the Government to provide information on any progress in this regard.

Article 4. Judicial cancellation of trade union registration. In its previous comment, the Committee requested the Government to indicate the reasons that could justify the application of the short procedural time limits set out in section 380(2) of the Substantive Labour Code in relation to the cancellation of trade union registration and also the extent to which a work stoppage that is considered to be unlawful may constitute a reason for the dissolution of a trade union.

The Committee notes the Government’s indication that: (i) the dissolution, liquidation or cancellation of the registration of a trade union is not an automatic outcome of a judicial ruling that a strike is unlawful; (ii) it is necessary to exhaust a judicial process in which the defendant enjoys the guarantees of the right to defence and due process; and (iii) the time limits set out in the law do not prejudice other procedures and are not in violation of the right of defence of the union, as the only difference in the summary procedure set out in section 380(2) of the Substantive Labour Code lies in the time limit to lodge an appeal and submit evidence, which is five days; and (iv) the draft labour reform proposes the amendment of section 450 of the Substantive Labour Code to prevent the participation of workers in a strike that has been declared unlawful from being grounds for the suspension or cancellation of the legal status of the union.

The Committee notes that the trade union confederations: (i) emphasize that actions leading to dissolution normally form part of strategies to undermine the right to organize; (ii) continue to consider that the time limits for the procedure are too short to be able to exercise the right of defence of trade unions; and (iii) after describing two specific situations of dissolution processes, insist on the need to review the judicial procedure for the cancellation of trade union registration.

The Committee takes due note of the various elements indicated. 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 notes with interest that the proposed legislative reform envisages the amendment of section 450 of the Substantive Labour Code to eliminate participation in a strike which has been declared unlawful being a reason for the suspension or cancellation of the legal status of a union. The Committee invites the Government to consider, during the discussion of the reform of the labour legislation, the inclusion of the possibility of extending the time limits to lodge an appeal and provide evidence under section 380(2) of the Substantive Labour Code. The Committee requests the Government to provide information on any developments in this regard.

Articles 3 and 6. Right of workers’ organizations to organize their activities and to formulate their programmes. Legislative issues. The Committee recalls that in its previous comments it requested the Government to: (i) revise the legislative provisions on the right to strike in essential services; and (ii) take the necessary measures to amend section 417 of the Substantive Labour Code, which prohibits the right to strike of federations and confederations.

The Committee notes the Government’s indication that the draft labour reform submitted to the Congress of the Republic envisages: (i) the amendment of section 430 of the Substantive Labour Code, under the terms of which services would be considered essential which, in the discharge of their functions, are so considered by the supervisory bodies of the ILO, as being services the interruption of which, in the strict sense, would endanger the life, safety or health of the whole or part of the population; and (ii) the amendment of section 417 of the Substantive Labour Code to eliminate the prohibition of the exercise of the right to strike by federations and confederations.

The Committee also notes the observations on this subject of the trade union confederations indicating that the restrictions continue to be applied to the right to strike by employers and judicial personnel who are unaware of legal precedents that give broader recognition to the right to strike. The Committee also notes that the ANDI, after reiterating its view that the right to strike is not covered by the Convention, once again expresses the view that Colombia has defined the subject of essential services in its legislation, which the high courts of the country have reviewed and consider to be in conformity with the provisions of the Constitution and ILO Conventions on this subject.

The Committee takes due note of these various views. The Committee also recalls that in previous comments 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. The Committee notes with interest that the proposed legislative reform submitted to the Congress envisages the amendment of sections 417 and 430 of the Substantive Labour Code with a view to ensuring conformity of the legislation with the Convention. The Committee expects that the reform, once adopted, will take fully into account the longstanding comments that it has been making on this subject. The Committee requests the Government to provide information on any developments in this regard.

Legislative reform. Additional aspects of the draft legislation. In addition to welcoming, as emphasized in the previous paragraphs, the various provisions of the draft legislation which address a series of specific comments made for many years by the Committee, it also notes with interest other provisions intended to broaden the scope and reinforce the application of the rights set out in this Convention. The Committee notes in particular in this regard: (i) the proposal to amend section 352(a) of the Substantive Labour Code so that the second part of the Code applies to all men and women workers, irrespective of their contractual status; (ii) the proposal to amend section 354 of the Substantive Labour Code to recognize a series of facilities for the exercise of trade union representational activities; (iii) the proposal to amend section 356 of the Substantive Labour Code to envisage an open list of categories of trade unions in accordance with the principle of trade union autonomy; (iv) the proposal to amend section 391(a) of the Substantive Labour Code, which envisages greater independence for trade unions to establish sections and chapters; and (v) the proposal to amend section 430 of the Substantive Labour Code which envisages the determination by the parties of agreed minimum services in the event of a strike in essential services, as well as their determination by an independent committee in the event of disagreement among the parties.

However, the Committee considers that, with a view to ensuring its full conformity with the Convention, the proposed amendment to section 448(3) of the Substantive Labour Code should be reviewed so that, even in the case of a strike movement supported by a majority of workers of the enterprise, the freedom to work of non-strikers is protected.

With regard to the provisions of the Bill on protection against anti-union discrimination and the promotion of collective bargaining, the Committee refers to its comments on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Draft legislation and tripartite consultation. While noting the information provided by the Government on the dialogue pursued with the social partners on the current draft legislative reform, the Committee notes that the ANDI, in its observations, alleges the absence of genuine consultations on the contents of the two Bills submitted to the Congress by the Government in March (a Bill which was eventually set aside in July 2023) and August 2023. The Committee recalls the need for all draft legislation which affects the interests of employers’ and workers’ organizations and their members to be subject to full consultation with them and emphasizes the special importance of such consultations for draft legislation respecting collective labour relations. The Committee therefore hopes that the Government will take all the necessary measures to ensure the full consultation of representative social partners on the draft legislative reform so that their legitimate interests and concerns are duly taken into consideration. The Committee requests the Government to provide information on this subject.

The Committee trusts that, taking duly into account the indications provided in the previous paragraph on tripartite consultation, the legislative reform process will make it possible to address the comments that it has been making for a long time in relation to the application of the Convention. The Committee recalls the availability of the Office to provide any assistance that may be considered relevant in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2025.]