Labor Rights And Freedom Of Association In Colombia

Labor Rights And Freedom Of Association In Colombia

Government’s And Employers’ Hostile Policies Toward The Exercise Of Freedom Of Association

And Labor Rights

Evaluation and proposals for the implementation of the Tripartite Agreement

Presented to the High-Level Mission of the ILO by the Colombian Trade Union Federations

CUT, CGT and CTC and the Confederation of Pensioners of Colombia (CPC)

Bogotá, October 2007

This report was prepared by delegates of the Executive Committees of the three Colombian trade union federa-tions – CUT, CGT, and CTC – as well as by the Colombian Confederation of Pensioners (CPC), with the support of a group of advisors of the CUT-CTC Legal Team, the CGT lawyers, the Colombian Commission of Jurists, and the Na-tional Syndical School (Escuela Nacional Sindical, ENS). The final draft was entrusted to Alejandra María Trujillo and Carlos Rodríguez Mejía of the CUT-CTC Legal Team, Lina Paola Malagón Díaz of the Colombian Commission of Jurists (CCJ), and José Luciano Sanín Vásquez of the National Syndical School (ENS).

* The Single Confederation of Workers of Colombia (CUT), the General Confederation of Democratic Work-ers (CGT) and the Confederation of Workers of Colombia (CTC).

To this report Escuela Nacional Sindical has received the fi-nancial assitnance AFL-CIO.

CONTENTS

PRESENTACIÓN .....................................................................................9

INTRODUCTION .................................................................................. 11

CHAPTER I. FUNDAMENTAL RIGHTS ........................................... 13

A. The normative framework of the ILO .............................................. 15

B. Measures adopted by the State ......................................................... 15 1. Practical measures adopted by the State ...................................... 16 1.1. Program for the Protection of Trade Union Members ..................................................................................... 16 1.2. The Democratic Security Policy ......................................... 16 1.3. Promotion of criminal investigations in cases of anti-union violence through the creation of the special sub-unit of Prosecutor’s ....................................... 17 1.4. Information management of intelligence archives ....................................................................................... 18 2. Legal Measures ............................................................................. 18

C. The current situation .......................................................................... 19 1. Violations of life, integrity and personal freedom of union members and unions .................................................... 19 1.1. Historical, structural and systematic violence constituting political genocide against the trade union movement ......................................................................... 19 1.2. Deliberate, not collateral, violence ..................................... 21 1.3. Anti-union violence continues during the Uribe Vélez administration (August 7 2002 – August 7 2007) .............................................. 21 1.4 Anti-union violence against women.....................................23 1.5 Homicides by Department ....................................................24 1.6. The most affected trade unions ...........................................25 1.7. Alleged authors of anti-union violence ...............................27 1.7.1 Anti-union violence by the guerrillas ................................27 1.7.2 Anti-union violence by the paramilitaries.........................28

1.7.3 Anti-union violence by State organs .................................28 1.8. The Justice and Peace Process ............................................28 2. The unsustainable situation of impunity in cases of homicides of union members ....................................................... 33 2.1. State of the investigations of assassinations against trade union members in the period between January 1, 1986 and August 7, 2007 ..........................................34 2.2. Impunity during the government of Álvaro Uribe Vélez (August 7, 2002 – August 7, 2007) .............................................36 2.3. Analysis of the report presented by the Prosecutor’s Office regarding progress of the sub-unit in the framework of the Tripartite Agreement .....................................39 2.4. Impunity in cases of crimes against freedom of association .............................................................................. 41

D. Proposals for overcoming the present situation ..............................42 1. Proposals to prevent and repair violations to the life, freedom, and personal integrity of the members of unions and of the unions ...............................................................................42 1.2. Measures for individual reparation of victims of anti- unionism ........................................................................44 1.3. Measures for reparation of the union movement ................44 2. Proposals for overcoming the untenable situation of impunity ........................................................................................ 45 2.1. Investigations should follow the following guidelines ....... 45 2.2. Strengthen the sub-unit and the judges with financial, logistical, and human resources so they can carry out their functions in a dignified and effective manner. .................. 47 2.3. Management and supply of information about criminal investigations in cases of anti-union violence. .......................... 47

CHAPTER II; FREEDOM OF ASSOCIATION ...................................48

(i) ARBITRARY STATE INTERFERENCE IN THE CREATION AND FUNCTIONING OF UNIONS, SITUATIONOF UNION REGISTRATION AND ELIMINATION OF UNIONS...................49A. The ILO’s normative framework ......................................................49

B. Measures adopted by the State .........................................................50 1. Legislative measures taken by the State.......................................50 2. Practical measures taken by the State .......................................... 52 2.1 Union registration as previous authorization for the existence and functioning of unions .............................. 53 2.2 Direct revocation of the union register ................................56 2.3 Elimination of unions ...........................................................57

C. The present situation ........................................................................58

D. Proposals for overcoming this situation ...........................................58

(ii) SYSTEMATIC NONCOMPLIANCE WITH THE RECOMMEN-DATIONS ON CASES ISSUED BY THE COMMITTEE ON FREE-DOM OF ASSOCIATION AND ADOPTED BY THE ADMINISTRA-TIVE COUNCIL OF THE ILO (2003-2007).........................................59

A. The ILO normative framework ........................................................59

B. Measures adopted by the State .........................................................60

C. The present situation ........................................................................ 61 1. Types of cases and unions affected .............................................. 61 1.1 Protection of the fundamental rights of union members, Case 1787 .................................................................................... 61 1.2 The right of workers to set up unions without previous authorization ................................................................ 61 1.3. The right to elect their representatives freely .....................62 1.4 The right to strike .................................................................62 1.5 The right to collective bargaining ........................................63 1.6 Consultation with the workers and employers organizations ..............................................................................64 1.7 The right of association of independent contractors and of workers of the Cooperatives of Associate Work ............64 1.8 Reinstatement .......................................................................64 2. Violators ........................................................................................65 3. State of compliance with the recommendations ..........................65

D. Proposals for overcoming this situation ...........................................65

(iii) THE RIGHT TO STRIKE.................................................66A. The normative framework of the ILO ..............................................66

B. Measures adopted by the State .........................................................66

C. The current situation.........................................................................67

D. Proposals for overcoming the situation ............................................68

(iv) OBSTACLES TO COLLECTIVE BARGAINING...................69A. The normative framework of the ILO ..............................................69

B. Measures adopted by the State ......................................................... 71 1. The Constitutional referendum of 2003 ....................................... 71 2. Legislative Act 1 of 2005 ..............................................................72 3. Arbitration tribunals that review collective agreements in their entirety .................................................................................73 4. Legal prohibition of collective bargaining for pubic servants .....73

C. The present situation .......................................................................... 75 1. Decrease in collective contracting ............................................... 75 2. Collective pacts undermine collective bargaining ...................... 76 5. Collective bargaining: scattered and dismembered .....................78

D. Proposals for overcoming this situation ............................................79

(v) UNION MEMBERSHIP ...................................................................79

A. The normative framework of the ILO ...............................................79

B. Measures adopted by the State ..........................................................80

C. The current situation ..........................................................................80 1. Evolution of union membership in Colombia ..............................80 2. Union participation by branch of economic activity for the years 1984, 1992, 2000 and 2005..........................................80 3. Working population and unionized population by economic branch .......................................................................... 81 4. Union members in public and private sectors. National total. Years 1984, 2005 ......................................................82 5. Unions and members per union type, 2005 .................................82 6. Unionized workers according to gender. National total. Years 1984, 1992, 2000 y 2005 ........................................................82


(vi) ACCESS TO THE ADMINISTRATION OF LABOR JUSTICE AND FREEDOM OF ASSOCIATION .................................................83

A. Jurisdiction and Competence ...........................................................83

B. Access to Labor Justice ....................................................................84 1. Unnecessary delays in labor-related procedures ..........................84 2. Option to choose [Fuero electivo] ................................................86

C. Disregard of international standards on the part of the High Courts ............................................................................86 1. Supreme Court of Justice ..............................................................86 2. State Council .................................................................................88 3. Constitutional Court .....................................................................88


CHAPTER III. PROMOTION OF DECENT WORK ........................... 91

A. The ILO normative framework ......................................................... 91

B. Measures adopted by the State .......................................................... 91 1. Economic growth without employment generation ..................... 91 2. Foreign investment and working conditions ................................92 3. Labor reform and the precarization of employment ....................94

4. Fraud in labor relations through the pseudo-Associative Work Cooperatives (cooperativas de trabajo asociado, CTA) .........95 4.1 Expansion of the mechanism of the Associative Work Cooperatives (cooperativas de trabajo asociado, CTA) ...96 4.2 The legislator opens the way to third party contracting of labor through the Work Cooperatives ....................................98 4.3. The government has no clear commitment regarding the control of the cooperatives ...................................................99 5. Deficiencies of the system of Labor Inspection ......................... 101

C. The present situation ........................................................................ 103 1. Characteristics of employment in Colombia .............................. 103 2. Characteristics of social protection ............................................104 2.1 Social protection in figures.................................................104 2.2 Health in the workplace ......................................................104 2.3. Old age with no direction or protection ............................ 105 3. Gender equity in the workplace .................................................106 3.1 Characteristics of gender equity in the workplace ............106 3.2. The case of Community Mothers: Where is equity at the workplace? ...................................................................... 107 4. Precarization and flexibilization of employment through CTA: Three cases ...........................................................................109 4.1 Sugar cane cultivation ........................................................109 4.2 Flowers ................................................................................ 111 4.3 Textiles and garments ......................................................... 112 5. Temporary employment agencies and other forms of precarious contracting ................................................................ 113 6. Precarization of employment in the public sector ..................... 114 7. Child labor: a factor that restricts decent work .......................... 115

D. PROPOSALS FOR OVERCOMING THIS SITUATION .............. 117CHAPTER IV. PROMOTIONOF A USEFUL SOCIAL DIALOGUE ......................................................................................... 121

A. The normative framework of the ILO ............................................. 121

B. Measures adopted by the State ........................................................ 121

C. The present situation ........................................................................122

D. Proposals for overcoming the situation ...........................................124 1. General criteria ...........................................................................125 2. Agenda for the Permanent Consensus-Building Commission ....................................................................................125 3. Other topics related to the fundamental rights and union freedoms of the workers ................................................126 4. Issues that are within the competence of the Permanent Consensus-Building Commission .................................................. 127

5. Topics proposed by the employers and the government that have no specific place in the Tripartite Accord, nor among the matters of competence of the Permanent Consensus-Building Commission ..................................................128

CHAPTER V. EVALUATION OF THE PERMANENT REPRESENTATION OF THE ILO ..................................................... 129ANNEX. RECOMMENDATIONS OF THE CONTROL ORGANS AND SPECIAL MECHANISMSFOR COLOMBIA. ......................... 135 1. Direct Contacts Mission (2000) .................................................. 135 2. Special Representative of the Director-General or Cooperation with Colombia ....................................................... 136 2.1 First Report of Special Representative (2000) ................... 136 2.2. Second Report of Special Representative (2001).............. 136 2.3. Third Report of Special Representative (2001) ................ 137 2.3.1. Preventive Measures ................................................. 137 2.3.2. Impunity ................................................................... 138 2.3.3. Freedom of Association............................................ 138 3. Committee on the Application of Standards .............................. 139 3.1. Information and reports: Colombia .................................. 139 3.1.1. 2000 ........................................................................... 139 3.1.2. 2001 ........................................................................... 140 3.1.3. 2002 ........................................................................... 141 3.1.4. 2003 ........................................................................... 141 3.1.5. 2004 ........................................................................... 142 3.1.6. 2005 ........................................................................... 142 3.2. General Report. ....................................................................... 3.2.1. 2006........................................................................... 144 3.2.2. 2007 .......................................................................... 144 4. Committee of Experts on the Application of Conventions and Recommendations ................................................................... 145 4.1. Individual Observation about Colombia ........................... 145 4.1.2. 2003 ........................................................................... 146 4.1.2. 2004 .......................................................................... 147 4.1.2. 2005........................................................................... 149 4.1.2. 2006 .......................................................................... 150 4.1.2. 2007........................................................................... 153

�

PRESENTATION

How the Colombian trade union federations under-stand and what they expect from the high-level mission of the International Labor Organization (ILO)

In the past, the case of Colombia has been the object of great debate within the ILO, and for this reason various mechanisms have been put into effect: a special paragraph, a direct-contact mission, a special representative of the Gen-eral Director, a high-level three-party mission, a special co-operation program, etc.

In view of the fact that these ILO mechanisms did not work, at the 2006 Conference the representatives of the Co-lombian trade unions, together with management and the Government, signed a Tripartite Agreement “For the right to free association and democracy,” in order to promote, through a permanent ILO local office in Colombia, four pri-ority aspects for the exercise of rights and freedoms.1

Fourteen months later, compliance with the agreement has been obstructed and there is no evidence of true will on the part of the government, or of the employers, to implement it or develop it. Only in January 2007 did a permanent pres-ence of the ILO materialize, and nine months later no signifi-cant progress has been made with respect to this agreement; only a few measures that, given the gravity of the Colombian

1 The four priority thematic hubs of the Tripartite Agreement are: (i) the promotion and defense of the fundamental rights of the workers, of their union leaders and of the organizations, particularly in what concerns life; (ii) union freedom, freedom of association and expres-sion, collective bargaining, as well as free enterprise for employers; (iii) technical cooperation to promote decent work; and (iv) the pro-motion of social dialogue in Colombia.

10

situation, do not represent substantial change.As a result of the 96th International Labor Conference,

the International Labor Organization decided the visit of a High-Level Mission to Colombia, to “identify current needs in order to guarantee the effective implementation of the Tri-partite Agreement and the Technical Cooperation Program, and to inform the Board in whatever way shall be decided by its Presiding Committee.” 2

The Colombian trade union federations do not want this to be just one more mission, since there have been many dif-ferent mechanisms in Colombia in the past and they have contributed little to change the situation.

This mission has the challenge of contributing to the generation of solutions to the difficult situation affecting la-bor rights and union freedom in this country. To that end, the first step must be to recognize the dimensions and the char-acteristics of the situation; and a second step is, of course, to address proposals for overcoming the obstacles that exist at the present time.

For the Colombian union movement, the ILO is a funda-mental reference; and in spite of the grave violations of free-dom of association, our goal is to reach solutions. This is why we think that the task of the high-level mission must be car-ried out in the framework of the international agreements on labor and of the recommendations made by the ILO control organs – that is, the Mission, the government, the employers, and the workers must take them as their starting point. We cannot start from zero. The ILO has analyzed the Colombian situation on many occasions and has issued a series of rec-ommendations that must begin to be implemented.

Considering what has been expressed by the General Di-rector of the International Labor Organization, the Colom-bian trade union federations hope that the Mission produces concrete and palpable results, that it identifies “the new ne-cessities in order to guarantee the effective application of the

2 Letter by the ILO General Director to the Colombian Government. http://www.ilo.org/public/spanish/standards/relm/ilc/ilc96/pdf/pr-22-part1.pdf

11

Tripartite Agreement and the Technical Cooperation Pro-gram,” and that it informs the ILO Board in its November session, as agreed at the June 2007 meeting.

With the above aims, we will present a judicious and detailed analysis around the four main thematic hubs of the Tripartite Agreement, specifying the problems and obstacles faced in each one of them, as well as a set of concrete pro-posals for overcoming them, all of it in the framework of the ILO norms and recommendations.

We are convinced that if the government and the em-ployers commit themselves to a sincere, effective, and useful dialogue, we can begin to overcome many of the difficulties now faced by the Colombian workers.10

Contents of the present reportThe Colombian trade union federations have prepared a

report containing six chapters and several information an-nexes. The first four chapters refer to the thematic hubs of the three-part agreement.

Chapter One refers to the fundamental rights of the workers, in particular regarding the right to life, to physical integrity and personal freedom of trade union members, as well as to the situation of impunity. Chapter Two refers to the exercise of freedom of association in the country, with em-phasis on topics that, in our judgment, are the most critical at the present moment. Chapter Three deals with the difficul-ties related to finding decent work. Chapter Four refers to the present erosion and inefficiency of the spaces and mecha-nisms for social dialogue. Chapter Five seeks to evaluate and make proposals regarding the permanent local office of the ILO in the country. Chapter Six presents a synthesis of the set of proposals that will permit an effective implementation of the Tripartite Agreement and strengthen the ILO perma-nent delegation.

Each chapter will refer, in the first place, to the ILO’s normative framework (agreements and recommendations) on the matter; secondly, to legal and practical measures tak-en by the State; thirdly, to the present state of the situation and cases that illustrate it; and lastly, to formulate concrete proposals for overcoming the present situation.

13

INTRODUCTION

Colombia is going through a very particular political situ-ation that contributes to consolidate a hostile atmosphere to-ward the exercise of labor rights and freedom of association:

Firstly, the process of restructuring of the paramilitary groups and the crisis of the peace process with these groups contribute to maintain a high level of threats and violent acts against the trade union movement, worsened by the more and more common and recurrent practice of the President and high government officials of making declarations against the legitimacy of the trade union movement, linking it with guerrilla groups or justifying anti-union violence as violence against armed actors in the conflict, while at the same time singling out the trade union movement as being part of an armed group.

In second place, the government places a great deal of obstacles in the way of new trade unions being created and of allowing the existing ones to work properly – that is, to nego-tiate collectively, to participate in forums of social dialogue, and so on. This creates a legal and practical blockage in the way of the exercise of freedom of association.

Thirdly, the Government, rather than moving forward on minimum labor standards, produces legislation and practic-es that run counter to decent work, thus leaving 80% of the workers in conditions of job insecurity.

Fourthly, the mechanisms and spaces for social dialogue are being seriously eroded as a result of the lack of will and reliability on the part of the government and the employers to reach agreements.

In fifth place, many employers in the country continue to express, both in their discourse and their practices, a great disdain for the normative framework of the ILO and for labor legislation.

15

CHAPTER.I..FUNDAMENTAL.RIGHTS

A..The.normative.framework.of.the.ILOThroughout the years, the ILO normative control organs,

as well as the special mechanisms for Colombia, have issued multiple and continuous recommendations urging the State to take measures to overcome the systematic and general-ized situation of anti-union violence and the high rates of impunity:

“(…) the reciprocal dependence that exists between pub-lic freedoms and trade union rights, and it emphasizes that a truly free and independent trade union movement can de-velop only in an environment of respect for fundamental hu-man rights (…) that the workers and employers organizations can carry out their activities freely and effectively only in an environment free of violence.”3

Likewise, “(…) it urges the Government once again to guarantee the right to life and security, and to strengthen with the utmost urgency the institutions needed to put an end to the situation of impunity, which constitutes a great obsta-cle to the exercise of the rights guaranteed by the Convention [No. 87]. The Commission observes, in general terms, that a climate prevails in the country that is not favorable to the exercise and development of union-related activities.” 4

3. Committee of Experts on the Application of Conventions and Rec-ommendations, CEACR, Individual observation, Convention 87, year 2007. Individual observation, Convention 87, year 2006. Indi-vidual observation, Convention 87, year 2005 Individual observa-tion, Convention 87, year 2002.

4. CEACR, Individual observation, Convention 87, year 2005. Indi-vidual observation, Convention 87, 2003.

16

B..Measures.adopted.by.the.StateThe State has adopted three measures to face the grave

human rights situation: i) the Program for the Protection of Union Members, ii) the democratic security policy, and iii) the creation of a sub-unit of Prosecutor’s in the framework of the implementation of the Tripartite Agreement. The State has also implemented some practices that go against the rights of the workers.

1. Practical measures adopted by the State

1.1. Program for the Protection of Trade Union MembersThe operation and the efficacy of the Program are lim-

ited in terms of its incapacity to assess risks adequately in some cases, and its lack of agility and flexibility to adopt and to vary preventive measures, to which can be added the fact that multiple violations continue to occur.

The Government invests important amounts of money in the Program, but it also promotes the stigmatization of the exercise of union-related activities. In national and international scenarios, the Government exalts the Pro-gram’s budget and the number of beneficiaries, while, on the other hand, it makes accusations against trade union leaders and union members.

The trade union movement recognizes the financial and logistic efforts that the State is deploying to implement this Program. However, while the Program protects some lead-ers, Government policies and the practices of the employers aim to destroy the trade unions and to obstruct their work.

1.2. The Democratic Security PolicyThe Democratic Security Policy has been characterized

by, among other aspects, its authoritarian nature; its per-missiveness regarding violations committed by the security forces; its disregard of the principle of distinction; 5 its in-sufficient efforts to dismantle fully the paramilitary groups,

5. Article 44.3 of Additional Protocol I of the Geneva Conventions of 1949 compels combatants to differentiate themselves from civilians as a way of protecting the civilian population.

17

which has led to their reorganization and to the emergence of new groups; the perpetuation of impunity; and the deepen-ing economic and social injustice.

In terms of the human rights of workers, Government policy has generated an environment that is hostile to the exercise of union freedom: the constant singling out against trade union members and their organizations by high Gov-ernment officials, the increase in violations by the State, leg-islative initiatives that run counter to human rights and the social and democratic State with rule of law, practices con-trary to the agreements and ILO recommendations. These are some of the characteristics of a policy that is not dem-ocratic and lacks a program for prevention, promotion and protection of such rights.

In spite of the fact that significant allocations are made from the national budget for the development and implemen-tation of this policy, the results in this aspect are almost non-existent.

1.3. Promotion of criminal investigations in cases of anti-union violence through the creation of the special sub-unit of Prosecutor’s

On the occasion of the Tripartite Agreement, and in or-der to promote criminal investigations, the General Prosecu-tor’s Office [Fiscalía] determined the creation of a sub-unit of eight Prosecutor’s in different regions of the country and the assignment of five Prosecutor’s within the Human Rights Unit to try cases of violence against men and women who are trade union leaders and members.

These Prosecutor’s are accompanied by a team of six in-vestigators each, who are members of Sijin and CTI.6 Addi-tionally, two judges were appointed to process the criminal cases of anti-union violence. 7

6. Resolution 3580 of October 31 2006.7. Resolution 3882 of the Superior Council of the Judicature, January

2, 2007, for a period of six months. Extended through Agreement PSAA07-4082, June 22 2007, for a further six months.

18

In spite of these measures, the trade union movement remarks that their implementation has brought no effective results. In Paragraph B of this chapter, we illustrate the lack of substantial progress in the work of the sub-unit.

We point out that the five sentences pronounced during 2007 are the result of the normal evolution of the work of criminal justice, but that up to now the sub-unit and the judg-es remain an initial measure that requires not only financial, logistic and human resources but, above all, the implementa-tion of an approach to the investigations and the trials that aims to understand anti-union violence as selective, system-atic, and structural kind of violence.

1.4. Information management of intelligence archivesA recurrent action on the part of the State’security or-

gans is to include in intelligence files members of unions for the sole fact of their exercise of union activity.

The trade union movement has declared that, according to the Constitution and the law, when information exists link-ing union members to criminal acts, these must be referred to competent authorities in order to carry out the pertinent judicial processes, guaranteeing their right of defense. Oth-erwise there can be no reason for State intelligence to keep information on trade union members and their union-related activities, since this is a legal and legitimate exercise.

2. Legal MeasuresThe State has implemented legislative measures that are

regressive with respect to the rights of trade union members. During the previous legislature, the Government presented a bill that aimed to turn the activities of intelligence workers into professional secrets. 8

8. Bill Nº 163 de 2006, Senate. “Through which norms are issued for reserve and professional secrecy in intelligence and counterintelli-gence, mechanisms are established for the protection of public ser-vants who carry out these activities, and other measures are stipu-lated.” Author: Ministry of Defense. Promoter: Senator Marta Lucía Ramírez.

1�

Through the passing of this law, the Government ex-pected to avoid the onset of judicial processes with the in-formation that those functionaries found out during their in-telligence activities and, on the other hand, to place serious obstacles in the way of investigations of crimes committed by these government workers in the exercise of their intel-ligence- gathering functions.

In May of 2007, Congress passed a statutory law of ha-beas data that was supposed to regulate the matter fully. 9 However, the law did not regulate the management of infor-mation on persons included in intelligence files, nor did it define mechanisms for the protection of their rights. 10

In spite of the grave violations caused by frequent prac-tices such as illegal wiretapping, especially of sectors of the opposition to the Government and concretely trade union members, Congress approved Law 1142 of 2007, which, in view of the order to wiretap by the Prosecutor’s Office [Fis-calía], authorized judicial review only after execution, in-stead of having that revision be carried out after the issuing of the orders and before they produced effects.

C..The.current.situation

1. Violations of life, integrity and personal freedom of union members and unions

1.1. Historical, structural and systematic violence constitut-ing political genocide against the trade union movement

In the past 21 years, approximately every three days a unionized worker has been assassinated, for a total of 253411

9. Statutory Law on Habeas Data currently going through Congress. Bill No. 221 de 2007 Chamber, was approved on June 4 by the Con-gressional Conciliation Commission and sent for constitutional re-view by the Constitutional Court, as is the case with this type of law, previous to presidential sanction (Article 153 of the Constitution). This last procedure has not yet ended at the present time.

10. Since the administration of President Ernesto Samper (1994-1998), the government commitment existed to clean out the files.

11. This figure on assassinations corresponds to the cases that the ENS and the union federations have documented up to now. It is quite possible that this figure is higher. Furthermore, it is still necessary

20

victims assassinated between January 1, 1986 and August 7, 2007. 20% of these assassinations were committed against trade union leaders, that is, 484 assassinations of union leaders.

Of the total victims, 2289 were men and 248 women who lost their lives demanding, defending, or simply exercising their fundamental right to join a trade union.

Table 1Total

Year 86 87 88 89 90 91 92 93 94 95 96

No. of37 67 78 50 38 83 135 196 104 237 275

Homicides 2534

Year 97 98 99 00 01 02 03 04 05 06 07

No of182 101 80 137 197 186 94 96 70 72 19

homicides

Source: Human Rights Data Bank - ENS – Trade union federations

Other violations have left more than 211 attacks against union leaders, and 185 cases of forced disappearance. At least 3,000 union members have received death threats directly linked to their union-related activities, and more than 1,000 have been forcibly displaced. The data systematized for this period shows that at least 8,601 violations have been com-mitted against the right to life, liberty, and personal integrity.

Table 2Total violations 1986-2007

Type of violation Number of cases Percentages

Attacks 211 2.4

Enforced disappearances 185 2.1

Forced displacement 1300 15.1

Arbitrary detentions 428 4.9

Harassment 190 2.2

Homicides 2534 29.4

Kidnappings 159 1.8

Torture 79 0.9

Total 8601 100

Source: Human Rights Data Bank - ENS – Trade union federations

to research cases prior to 1986. After contrasting this figure with in-formation provided by the General Prosecutor’s Office, the CCJ has found the there might be another 288 cases of assassination against union members, which would lead to a total of 2,832.

21

This figure indicates a human rights crisis affecting the labor union movement that does not relate to the existence of a diffuse and indiscriminate kind of violence, as the Govern-ment has claimed in order to hide the real dimension of the problem. On the contrary, it has to do with a type of aggres-sion marked by systematic, permanent and selective viola-tions, which indicates clearly that this violence must be con-sidered political genocide against the trade union movement.

1.2. Deliberate, not collateral, violenceThe majority of human rights violations against union-

ized workers are linked to labor conflicts12 (work stoppages, strikes, collective bargaining, and creation of unions). In this context, it must be considered that, in the majority of cases, the armed actors intervene in labor conflicts to give backing to and impose the labor policies of the State and/or measures that do harm to the interests of the workers.13

It is a case of parallel and illegal processes for the regula-tion of labor conflicts. Thus violence against union members forms part of a number of strategic and systematic actions obeying specific interests and seeking to weaken union ef-forts to demand and defend labor rights.

1.3. Anti-union violence continues during the Uribe Vélez administration (August 7 2002 – August 7 2007)

During the first five years of the present government, 399 union members have been assassinated (in spite of official efforts to distort this reality), creating an atmosphere of con-fusion, trying to make the international community believe

12. According to the human rights databank of the ENS, since 1991, 91 cases of violations to the rights to life, freedom, and personal integ-rity of unionized workers have occurred during public denunciations by the unions, three cases during the creation of a union, 26 during a strike, 105 during workers mobilizations, 62 during collective bar-gaining, six during a work stoppage, and 134 during the storming of a facility.

13. Two cases that exemplify this situation are that of the union of public workers and employees of the municipalities of Antioquia (Sintrao-fan), which filed a complaint about this situation before the Inter-American Human Rights System; another is that of Sintraunicol, Case 2489 before the Committee on Freedom of Association of the ILO.

22

that the situation of systematic and prolonged violence has been resolved and that government initiatives such as the democratic security policy have shown their effectiveness.

Without failing to acknowledge the reduction in the num-ber of homicides against union members, it is necessary to be aware of the true scale of total violence occurred during this period, which has intensified. Thus, the past five years have witnessed a concentration of 28% of the total of viola-tions registered during the past 21 years.

This means that 2,402 violations have been commit-ted against the life, liberty, and personal integrity of union members and that this number corroborates that, although changes have been registered in some of the figures, there has been no structural change in anti-union violence and it is undeniable that the trade union movement continues to face a human rights crisis.

Table 3Homicides August 7 2002-August 7 2007

Year 2002 2003 2004 2005 2006 2007 TOTAL

Homicides 48 94 96 70 72 19 399

Source: Human Rights Data Bank - ENS

Table 4Total Violations During Uribe Government

August 7 2002-August 7 2007

Type of ViolationNumber of

CasesPercentages

Illegal forced entries 18 0,7

Threats 1358 57,2

Attacks with or without injury 45 1,9

Disappearance 24 1,0

Forced displacement 140 5,8

Arbitrary detention 221 9,1

Homicide of relative 1 0,04

Homicide 399 16,5

Harassment 158 5,9

Kidnapping 29 1,2

Torture 16 0,7

Total 2402 100


23

In the political arena it has become recurrent that the President or other high government officials make state-ments against the legitimacy of trade union activity, link-ing it to guerrilla groups, or justifying anti-union violence as violence among the armed actors in the conflict, imply-ing that the trade union movement is part of one of them.

Two clear examples of this are: one, the declarations of the Vice- President regarding the three union members as-sassinated by the Army in Arauca in 2004, whom he labeled guerrilla fighters fallen in combat.

The other, the declarations against the entire trade union movement because of the participation of four union mem-bers in a left-wing forum that took place in Quito, Ecuador, in July 2007.

On the other hand, a systematic increase in detentions of union leaders has been taking place since the end of 2002, a new variable in the panorama of violations against union-ists. It is striking that the majority of these detentions have similar characteristics:

Previous monitoring by state agents, the start of judi-cial processes against the union members accusing them of rebellion, presentation of them in the media as alleged guerrilla members and, later, acquittal for lack of evi-dence. Additionally, reinserted persons belonging to in-formants networks are used as false witnesses in some of the processes.

1.4 Anti-union violence against womenThe increase in violence against unionized women is an-

other of the characteristic traits of this period. In the year 2003, 14 a disproportionate increase – of almost 500% - was registered in violations of the human rights of unionized women with respect to 2002. Such a high level of violence is maintained in 2004, year in which it even increases by 20%. In 2003 there were 160 more violations than in 2002,

14. In this context, see: Cuando lo imposible en términos jurídicos se hace posible en términos políticos, Cuaderno de Derechos Humanos No 14, Escuela Nacional Sindical (ENS).

24

of which 28 were femicides. In 2004 this violence grew by 20%, with 41 violations more than in 2003.

Further, in the year 2005, 152 cases of violence were reg-istered, of which 15 are femicides; and in 2006, 86 viola-tions were registered, of which 10 were femicides. Although these data present relative fluctuations, they show the strong impact and growth of anti-union violence against women in this period.

1.5 Homicides by DepartmentAntioquia has been the most dangerous department for

the exercise of trade union activities in Colombia: of all the homicides committed against unionized workers in the en-tire national territory, 51,3 percent occurred in Antioquia. This is equivalent to 1,296 homicides, a figure that reveals conclusively the difficult situation faced by the trade unions in Antioquia, particularly in the decade of the 1990s, when the great majority of the cases occurred. Of the 1,296 assas-sinations registered, 1,169 – or 90% - occurred in the period between 1986 and 2000. Far behind are the other depart-ments – in second place is the department of Santander with 184 assassinations, followed by the department of Valle del Cauca with 123 homicides, Cesar with 111 and Magdalena with 92 homicides. The other departments show figures that oscillate between 10 and 60 homicides.

Table 5Homicides of unionized male and female workers by department

January 1 1986 to July 31 2007

Departments Number of homicidesAntioquia 1296

Santander 184

Valle 123

Cesar 111

Magdalena 92

Córdoba 72

Arauca 64

Norte de Santander 63

Atlántico 51

Bolívar 51

Nariño 44

25

Bogotá D.E 43

Risaralda 40

Caldas 36

Meta 35

Cauca 32

Tolima 30

Caquetá 28

Sucre 25

Putumayo 24

Cundinamarca 20

Casanare 13

Huila 13

Boyacá 12

Guajira 12

Guaviare 8

Chocó 7

Quindío 6

Amazonas 1

TOTAL 2534

1.6. The most affected trade unionsWith respect to the most affected trade unions,

Sintrainagro is the one with the greatest number of assas-sinations in the recent history of the Colombian movement, with 844 members assassinated – the equivalent of 33.5% of the total of homicides occurred in these past 21 years. In second place comes the teachers union of Antioquia, Adida, which during the same period shows a total of 257 members assassinated a figure equivalent to 10% of the total of assas-sinations. Following in order are the Workers’ Trade Union of the oil industry (Unión Sindical Obrera - USO) with 87 members assassinated, Anthoc with 54 assassinations, Sin-traelecol with 47, and Asonal Judicial with 43.

The Colombian Federation of Educators (Federación Co-lombiana de Educadores, FECODE) is the federation with the greatest concentration of anti-union violence, with 742 registered assassinations and a generalized panorama of vio-lence across its 28 affiliate organizations. Thus: the teachers association of Antioquia – Adida – is the most victimized union of the federation. Next follows the union of educators

26

of Córdoba, Ademacor, with 39 assassinations; the educators of Cesar, Aducesar, with 37 assassinations; the educators of Nariño, Simana, with 36 cases; the educators of Arauca, Asedar, Caldas, Educal, Norte de Santander, Asinort, and Magdalena, Edumag, with 33, 32, 31, and 31 homicides re-spectively.

It is possible to point out that anti-union violence has be-come generalized throughout the union movement, but taking as reference the most affected organizations it can be concluded that the violent acts concentrate on 30 unions, with 75% of the total of homicides. By sector, the order is as follows: agricul-ture, education, health, oil, judicial, food, official workers, and public services are the most victimized.

Table 6Unions most affected by homicides 1986 – 2007

Union name Acronym Numbers Sex of victimin1. Sindicato Nacional de trabajadores de la industria agropecuaria.

Sintrainagro 84415 femenine 27masculine 817

2. Asociación de institutores de Antioquia Adida 257 femenine 53masculine 204

3. Unión Sindical Obrera USO 87 femenine 0masculine 87

4. Asociación Nacional de trabajadores y empleados de hospitales, clínicas, consultorios y entidades dedicadas a la protección de la salud

Anthoc 54femenine 23

masculine 31

5. Sindicato de Trabajadores de la Electricidad de Colombia.

Sintraelecol 47 femenine 1

masculine 466. Asociación Nacional de funcionarios y empleados de la Rama Judicial

Asonal judicial

43femenine 6masculine 37

7. Asociación de educadores de Córdoba Ademacor 39 femenine 2masculine 37

8. Asociación de educadores del Cesar Aducesar 37 femenine 5masculine 32

9. Sindicato de educadores de Nariño Simana 36femenine 8masculine 28

15. In this figure are included 108 union members belonging to Sintagro assassinated in the period 1986-1989 and 24 assassinations of union members belonging to Sintrabanano during the same period. These two organizations would later fuse in Sintrainagro in 1989; the re-maining 712 union members belonging to Sintrainagro were assas-sinated during the period 1989-2007.

27

10. Asociación de educadores del Arauca

Asedar 33femenine 2masculine 31

11. Educadores Unidos de Caldas Educal 32 femenine 9masculine 23

12. Asociación de Institutores Norte santandereanos

Asinort 31femenine 4masculine 27

13. Educadores Unidos del Magdalena Edumag 31 femenine 7masculine 24

14. Sindicato Único de educadores del Valle

Sutev 28femenine 9masculine 19

15. Sindicato de conductoresy taxistas de Cartagena

Sincontaxcar 28femenine 0masculine 28

16. Sindicato de trabajadoresde palmas

Sintrapalma 27femenine 0masculine 27

17. Asociación de educadores de Caquetá

Aica 24femenine 6masculine 18

18. Asociación de institutoresdel Cauca

Asoinca 24femenine 6masculine 18

19. Sindicato de educadoresde Risaralda

SER 24femenine 6masculine 18

20. Sindicato de Educadoresde Santander

SES 20femenine 4masculine 16

21. Sindicato Unido de trabajadores de la construcción

Sutimac 20femenine 0masculine 20

22. Asociación sindical de empleados del instituto penitenciario y carcelario INPEC

Aseinpec 19femenine 0masculine 19

23. Sindicato nacional de trabajadores de la industria de alimentos

Sinaltrainal 19femenine 1masculine 18

24. Sindicato de trabajadoresy empleados de servicios públicos autónomos e institutos descentralizados

Sintraemsdes 17femenine 0

masculine 17

25. Sindicato de trabajadores de las empresas municipales de Cali

Sintraemcali 17femenine 0masculine 17

26. Sindicato de trabajadoresoficiales de los municipios deAntioquia

Sintraofan 16femenine 2

masculine 14

27. Asociación de educadoresdel Putumayo

Asep 16femenine 5masculine 11

28 Sindicato trabajadores agrícolas Sintragricolas 10 femenine 0masculine 10

29. Sindicato de trabajadores de la compañía Frontino Gold Mines

10femenine 0masculine 10


1.7. Alleged authors of anti-union violenceOnly in 452 of the cases of assassinations do we have

information on the presumed author – that is, in 2082 cases we have no information in this respect. Thus, paramilitary groups appear as perpetrators in 63%, the guerrillas in 32,5% and the public security forces in 4,5% of the cases.

28

1.7.1 Anti-union violence by the guerrillasIn the past 21 years, the guerrilla groups have assassi-

nated at least 147 unionists, 6.4% of total homicides. In that same period, to these groups have been attributed 325 cases of violations to life, liberty, and integrity, which is equivalent to 4% of total anti-union violence - 147 homicides, 86 cases of death threats and 80 kidnappings. However, there have been also four cases of forced disappearance, four forced dis-placements, and two cases of torture.

This violence has targeted basically workers in the agri-cultural sector, members of Sintrainagro, with a total of 103 assassinations, the equivalent of 70%; these are followed by union members of the education sector with 22 assassina-tions, representing 15%; unionists of the judicial sector, with 6, and those of the electrical sector with 5 assassinations.

1.7.2 Anti-union violence by the paramilitariesThe Colombian situation is characterized by a crisis of

human rights and humanitarian law in which massive and systematic violations of human rights have been perpetrated by State agents and by paramilitary groups that have acted with the acquiescence, the tolerance, the support or omission of the State.

In the past 21 years, 285 homicides of trade union mem-bers have been attributed to paramilitary groups. These groups appear as the major authors of deaths and other viola-tions of the rights to life, integrity, and freedom of unionized workers.

1.7.3 Anti-union violence by State organsIn the past 21 years, in at least in 20 cases of assassi-

nations of trade union members the presumed direct per-petrators are members of the army. Four cases occurred in Santander; three in Antioquia, Cauca, and Arauca, respec-tively; and two in Meta. The unionized workers of the agri-cultural sector have been the most affected, with nine assas-sinations. They are followed by mine and quarry workers, with four assassinations; and by workers in the commerce and education sectors, with two assassinations respectively.

2�

1.8. The Justice and Peace ProcessIn July of 2005, Congress approved Law 975 of “justice

and peace.” The law had substantial flaws that made it dif-ficult for the victims to gain access to justice. Due to the legal challenges against Law 975, 16 the Constitutional Court declared the law unconstitutional or ruled the conditioned constitutionality of several of its key provisions.

Law 975 would be applicable to those persons who at the moment of their demobilization had sentences or legal pro-cesses against them for crimes constituting grave violations of human rights or breaches of humanitarian law.

In practice, 93,11% of the paramilitaries were not de-tained or sentenced for such violations,17 and for this reason the Government, after having issued Decree 128 of 2003,18 is pardoning them or granting them equivalent benefits, freeing these persons within a short time. The lack of legal processes against the paramilitaries is so high that only 6,89% of the demobilized paramilitaries will come under Law 975. In this way, even some commanders of the groups fronts and blocks are being pardoned.

In the framework of this process, the paramilitaries have confessed to assassinations, plans orchestrated with the mili-tary and with State agents to assassinate unionists, as well as financing and supporting various companies.

In July 2007, Salvatore Mancuso declared with regard to the 2001 assassination of Aury Sará Marrugo, president of the Cartagena office of Workers’ Trade Union (USO), that Carlos Castaño had the intention of assassinating him and asked him (Mancuso) for his support, and therefore his inter-

16. Some of them had unions as promoters.17. The total number of demobilized paramilitaries is 31.671; of these

persons, 28.758 are being pardoned in the framework of Decree 128 of 2003. The number of those who have invoked Law 975 is 2.183. High Commissioner for Peace, “Proceso de Paz con las autodefen-sas”. Informe Ejecutivo. www.altocomisionadoparalapaz.gov.co. Consulted on August 9, 2007.

18. Regulating Law 418 of 1997”, extended and modified through Law 548 of 1999 and Law 782 of 2002.

30

vention consisted only in lending Castaño a man, but that he never gave the order to kill Aury.19

Likewise, Juan Francisco Prada, alias “Juancho Prada”, admitted to having assassinated, in February of 2001, Pablo Antonio Padilla López, vice-president of the union of Indu-palma. 20

Perhaps the most serious case, which shows not only the links between the State and the paramilitary groups but also the persistence of a permanent, systematic, deliberate, and selective violence against union members, was the confes-sion of Edgar Ignacio Fierro Flórez, alias “Don Antonio,” during his declaration in June 2007 about a plan to exter-minate trade union leaders orchestrated by high officials of DAS together with paramilitaries. 21

On January 29, 2005, Rafael García, former director of information technology of DAS, was captured by the Office of the Prosecutor. 22 During his declarations to the Prosecu-tor, García revealed the links between the then-Director of DAS, Jorge Noguera, and paramilitary groups. 23

During his free-version declaration, alias “Don Antonio” revealed that he met Rafael García through David Hernández, former member of the Army, who was now paramilitary com-mander of the Front José Pablo

Díaz Bloque Norte, with the alias “39.” Alias “Don Anto-nio” contacted García with Rodrigo Tovar Pupo, alias “Jorge

19. Report on the free-version declaration by Salvatore Mancuso, Co-lombian Commission of Jurists, January 2007. See also: “Mancuso confes unos 70 crímenes”, El Tiempo, January 17, 2007, pages 1-3.

20. Report on the free-version declaration by Juan Francisco Prada, Colombian Commission of Jurists, April 2007. See: “Prada comenz a reconocer crímenes”, El Tiempo, April 13, 2007; “Juancho Prada solo confes homicidio de sindicalistas”, El Heraldo, April 13, 2007.

21. Report on the free-version declaration of June 25-29 by Edgar Igna-cio Fierro Flórez, Alias “Don Antonio”, Colombian Commission of Jurists, June 2007.

22. El Tiempo, “Infiltraron al DAS: borran prontuarios de extraditables y de paramilitares”, February 3, 2005, p. 1-2; Revista Semana, Octo-ber 31 – November 7, 2005.

23. El Espectador, “Las propuestas para salvar el DAS”, January 15, 2006. El Tiempo, “Sale jefe de inteligencia del DAS”, October 29, 2005, p. 1-5.

31

40”, for information regarding “guerrilla members and guer-rilla collaborators.” The negotiation consisted in the hando-ver by DAS officials of a list with 23 union members in ex-change for 50 million pesos. 24.

In the end, the result of the criminal action against union members was that seven persons were assassinated: one of them presumably by the paramilitary Self-Defense Groups of Colombia (AUC) and two by unidentified paramilitar-ies. Four more were assassinated by an unidentified armed group. One person was victim of forced disappearance by an unidentified armed group. Five were victims of arbitrary detention by State agents, and one received death threats.

Two persons were victims of attacks by unidentified armed groups. Finally, three persons were not attacked. 25

During the free-version declarations, paramilitary com-manders have confirmed the participation of companies and multinational enterprises in financing and supporting para-military groups. This financial support has come from com-panies such as Drummond, Postobón, Bavaria, Hyundai, Carbones del Caribe, Vikingos (a fishing company), palm growers of Magdalena, coffee growers of the Sierra Nevada, coal companies of Cesar, Ecopetrol, and Prodeco;26 from

24. Report on the free-version declaration of June 25-29 by Edgar Igna-cio Fierro Flórez, Alias “Don Antonio”, Colombian Commission of Jurists, June 2007.

25. See case by case on the victims in “Sanci n a gobierno y empresarios colombianos, Evaluación de la aplicación del Acuerdo Tripartito: mandato, estructura, funcionamiento y financiaci n de la presencia permanente de la OIT en Colombia.” P. 6, Document of the Colom-bian union federations, Central Unitaria de Trabajadores (CUT), Confederación General del Trabajo (CGT), lConfederación de Tra-bajadores de Colombia (CTC) and Confederación de Pensionados de Colombia (CPC), at the 96th International Labor Conference, pre-pared with the support of the Conferencia Internacional del Trabajo, elaborado con la cooperación y apoyo de la National Union School (Escuela Nacional Sindical - ENS) and the Colombian Commission of Jurists (CCJ).

26. Report of the free-version declaration of Salvatore Mancuso, Colom-bian Commission of Jurists, May 15-18, 2007; “Mancuso habla de Bavaria y Postobón, de los congresistas de las AUC y de los diri-gentes regionales a su servicio”, Caracol Radio, May 16, 2007; “Con narcotráfico y cobros a empresas AUC, financiaban sus actividades:

32

lumber companies such as Pizano, Maderas del Darién27 and Madereras de la Cuenca del Rio Truandó. 28 Transport companies such as Brasilia, Transportadores de Carbón, and Copetrán. Information was also given on direct agreements between the paramilitary groups and six banana companies: Chiquita Brands, Dole, Probán, Del Monte, Bancol, Unibán y Sociedad Emilia Hasbún & Cia. For his part, Nodier Giraldo Giraldo revealed that paramilitary groups obtained financ-ing from Comcel, Club Vacacional Mendihuaca Caribbean Resort, and some contractors of Gases del Caribe29; while alias “el Alemán” linked in the same sense the associated municipalities of Urabá. 30

A further case is the preventive detention of Manuel Combariza Rojas, manager of the company Coolechera, be-tween October 2002 and October 2004, accused of the crime of paramilitarism. This legal decision takes place precisely when anti-union violence presumably attributable to para-military groups in that company caused the assassination of the leader Wilson Peluffo in September 2003, an attack

Mancuso”, El Colombiano, 17 de mayo de 2007; “Córdoba, la regi ón más salpicada”, El Colombiano, May 17, 2007; “Cordobeses en el ojo del huracán”, El Meridiano, May 17, 2007; “Salvatore Mancuso salpica a Hyundai y a Carbones del Caribe”, Caracol radio, El Co-lombiano, May 17, 2007, “Mancuso entrega lista de empresas que lo financiaban”, El Espectador, May 17, 2005, “Mancuso contó como paras le sacaron plata a todo el país”, El Tiempo, May 18, 2007, p. 1-4; “La plata entraba por todos lados: Mancuso”, El Mundo, May 18, 2007; “Al agua financiadores de las AUC”, El Meridiano, May 18, 2007.

27. Report on the free-version declaration of June 25-29 by Edgar Igna-cio Fierro Flórez, Alias “Don Antonio”, Colombian Commission of Jurists, June 2007.. “Sobre Urabá llegó el turno de la verdad de El Alemán”, El Colombiano, June 5, 2007.

28. Report of the free-version declaration of Rodrigo Pérez, alias “Julián Bolívar”, Colombian Commission of Jurists, July 2007. “Sobrino de Hernán Giraldo destapa a financiadores”, El Heraldo, July 15, 2007.

29. “Sobrino de Hernán Giraldo destapa a financiadores”, El Heraldo, July 15, 2007.

30. Report on the free-version declaration of June 25-29 by Edgar Igna-cio Fierro Flórez, Alias “Don Antonio”, Colombian Commission of Jurists, June 2007.. “Sobre Urabá llegó el turno de la verdad de El Alemán”, El Colombiano, June 5, 2007.

33

against union president Manuel Hoyos in July 2003, as well as threats against other union leaders.

The demobilization model and the application of this legal framework are now in deep crisis and must therefore be reconsidered: In the first place, because although the law states as one of its purposes the achievement of truth, justice, and reparation, these have failed to materialize for the vic-tims. Second, because this process has yet to begin to hold responsible the businessmen and the members of the State security forces for the growth of paramilitarism. Only a few cases are mentioned, without consequence in terms of ac-countability for the crimes. In the third place, because the paramilitary structures have not been dismantled; 31 there is continuity, rearmament, and the creation of new paramili-tary structures:

Various reports and sources register the fact that there are at present 65 paramilitary groups in 26 departments of the country, through which the security and the rights of the victims remain at great risk. Fourthly, the phenomenon of paramilitarism is not a thing of the past: in the October elec-tions it will most probably maintain political control of hun-dreds of municipalities and will increase its hold on State institutions.

2. The unsustainable situation of impunity in cases of ho-micides of union members

The absence of investigation and punishment of those responsible for grave human rights violations – not only the rights to life, freedom, and integrity, but also crimes against

31. “The presence and acts of the various illegal groups in different re-gions of the country continues to constitute one of the principal risks for the consolidation of the peace process. Some of these groups are allegedly being led by self-defense commanders that did not heed the Government’s call to participate in the process, while others reflect the alliance between former paramilitaries and drug traffickers. In the same sense, there is participation of middle-level self- defense commanders leading new illegal armed structures. The operations of these groups continue to affect gravely the civilian population, particularly vulnerable groups such as women, children, Afro-Co-lombians and indigenous persons.” Paragraph 4, Report 8, MAPP-OAS, July 2007. [Translation ours.]

34

freedom of association and breaches of humanitarian law – deepens and prolongs anti-union violence.

Unionism has been the victim of aggressions that require that justice acts, in the sense of acknowledging the system-atic nature of the crimes, making visible for all society the gravity of the violence, establishing the causes of its expan-sion, and guaranteeing protection and participation of the victims in the criminal investigations so the rights to truth, justice, and reparation become a reality and guarantees of non repetition are secured.

In this section we will analyze, in the first place, the state of the criminal investigations of 2,83232 assassinations of members of trade unions that occurred between 1986 and 2007. Secondly, the state of criminal investigations in cases of homicide during the administration of President Uribe. In the third place, an analysis of the advance report on the Tripartite Agreement that the Ministry of Social Protection handed over to the union federations, which contains the in-formation that the General Prosecutor’s Office presents as part of the work of the sub-unit of Prosecutor’s, created to give a particular thrust to the cases of anti- union violence. Lastly, an analysis of impunity in cases of other crimes against freedom of association.

2.1. State of the investigations of assassinations against trade union members in the period between January 1, 1986 and August 7, 2007

On July 17, 2003, in the framework of the activities of the Inter- institutional Commission on the Human Rights of the Workers, 33 the Office of the General Prosecutor issued

32. The ENS has registered 2,534 assassinations of unionists in the peri-od between January 1, 1986 and August 7, 2007.The Prosecutor’s Of-fice reported 288 more cases to the CCJ, for a total of 2,832 cases.

33. Commission created through Decree 1413 of May 1997. According to this decree, the functions of the Inter-institutional Committee are the promotion of the rights of the workers and attention to the violations of their rights through collecting information, studying the state of the criminal processes, presentation of evaluations to the competent authorities so that the pertinent investigations can be carried out and recommendations formulated in order to achieve full reparation of the victims.

35

a general report on the criminal investigations being carried out for violations of the human rights of trade union mem-bers at the national level.

The report, complemented with data provided subse-quently by the Prosecutor’s Office to the Colombian Com-mission of Jurists (CCJ) regarding the legal monitoring of those investigations, as well as information on violations that took place after that date, the information provided to the ILO and to the trade union federations, has become the basis for monitoring the state of the investigations.34 For this occa-sion, the database referred to was compared with that of the National Union School (ENS).

The ENS has registered 2,534 assassinations of trade union members for the period between January 1, 1986 and August 7, 2007. Additionally, the CCJ found 288 more cases among the information of the Prosecutor’s Office, for a total of 2,832 cases. Of those 2,832 cases, 1,987 are not registered on the database provided by the Prosecutor’s Office that the CCJ handles, which covers the period 1985 to 2007. That is, 69.5% are not included among the data that the Prosecutor’s Office has reported to the trade union federations and the ILO, information consisting of only 492 cases.

This fact is extremely worrying and could be explained by the following reasons, all of them equally alarming:1) That the Prosecutor’s Office does not know, and is not

investigating, 69,5% of the assassinations, which are known publicly because they have been reported by the ENS year after year;

2) That the information in the Prosecutor’s Office is so dis-organized that it has not identified yet how many of the victims in its investigations are trade union members. This would be very serious, because the ENS has the in-formation that certifies such status;

3) That the registers of the ENS do not include the totality of homicides of trade union members, and it should add

34. Database of the Colombian Commission of Jurists on legal monitor-ing, made up of the information the CCJ obtains from the Prosecu-tor’s Office on judicial follow up on these investigations, as well as information on violations that occurred after that date from the data presented to the ILO and the union federations.

36

to its own registers all those of the Prosecutor’s Office.4) That the Prosecutor’s Office reports cases of homicides

whose victims are not trade union members – a situation that could be distorting the dimensions and the character of anti-union violence.The Prosecutor’s Office must clear up this situation im-

mediately – particularly if one takes into account that, on the basis of the information available on homicides between 1986 and 2007, the situation is not encouraging. The data-base prepared with the information provided by the Prose-cutor’s Office contains 845 registered cases. 35 The state of the investigations in those cases is as follows: 72.3% are at the preparatory stage36 (etapa previa) (611/845); 6.6% are at the preliminary stage (etapa de instrucción) (56/845); only 14.8% of the cases have reached the trial stage (etapa de juicio) (125/845). Finally, in 53 of the cases (el 6.3%), the Prosecutor’s Office reports the case but gives no informa-tion on its state. If the cases that have reached the trial stage are considered as having overcome impunity, then it can be established that 85.2% of the cases of homicide known by the Prosecutor’s Office between 1985 and 2007 remain in impu-nity. This figure could be higher depending on the sentence: if it was for acquittal, it means that the act remains unpun-ished and its perpetrators protected.

2.2. Impunity during the government of Álvaro Uribe Vélez (August 7, 2002 – August 7, 2007)

In this paragraph, the number of homicides against trade union members committed during the present government will be compared with the number of cases in which, accord-ing to reports by the Prosecutor’s Office, criminal processes have been initiated in the same period. In this purely quan-titative analysis we start out from the assumption that the

35. Cases were found that were included in the database from the Prose-cutor’s Office but that were not on the ENS lists.

36. At the etapa previa of a criminal process, no charges or criminal re-sponsibility have been attributed to anyone. The etapa de instrucción begins when participation in a crime is attributed to one or several presumed authors. The etapa de juicio begins when a person or per-sons is/are charged formally before a judge.

37

investigation of a homicide must begin immediately after the crime is committed.37 That is, that the investigations opened in 2002 must correspond to homicides committed that same year. We include cases that are at the trial stage in spite of the fact that it is not likely that a criminal process reaches its trial phase in a year or less.38 In previous analyses of impunity in cases of anti-union violence, it has been established that only a tiny percentage of the investigations reach the trial phase, and that the excessive length of criminal investigations con-tributes to the impunity of such cases.39

As was mentioned in a previous paragraph, during the first five years of the current administration, according to the ENS 399 members of trade unions have been assassinat-ed. However, the General Prosecutor’s Office in its reports makes reference to 421 homicides – that is, 22 more. We have not yet corroborated this information with the unions.

Comparing the information on homicides with that on criminal trials, we see that the criminal trials for the homi-

37. Article 250 of the Colombian Constitution reads: “The Office of the General Prosecutor is obliged to carry out criminal action and in-vestigate acts that have the characteristics of a crime and that be-come known to it through denunciation, special petition, complaint, or judicial request, as long as sufficient motives and circumstances can be established indicating the possible existence of such crime. Consequently, it cannot suspend, interrupt, or relinquish criminal prosecution, except in cases established by law for the application of the principle of opportunity regulated in the framework of the State’s criminal policy, which will be subjected to legality control by a judge exercising the control or guarantees function. Excepted are crimes committed by members of the State security Forces in active service and related to that service.”

38. In later analyses we will illustrate in detail whether the legal pro-ceedings initiated or in trial phase effectively correspond to the cas-es of homicide committed in the course of this year, by comparing the names of the victims. We assumed also that the cases on which no information is known are being handled by criminal justice.

39. “Sanción a Gobierno y Empresarios Colombianos”, by the union federations - Central Unitaria de Trabajadores (CUT), Confeder-ación General del Trabajo (CGT), Confederación de Trabajadores de Colombia (CTC) and Confederación de Pensionados de Colombia (CPC), report to the 96th International Labor Conference – prepared with the support of the National Union School (Escuela Nacional Sindical - ENS) and the Colombian Commission of Jurists (CCJ). June 2007.

38

cide of unionized persons between August 7 and December 31, 2002 amount to 50,9% of the 53 homicides committed during the same period (27/53); that is, the Prosecutor’s Office has no knowledge of a criminal trial having been initiated in 49,1% (26/53) of the cases.

In the year 2003, 63,2% of the 106 cases of homicide of union members went to trial (67/106); this means that there is no information from the Prosecutor’s Office regarding 36,8% (39/106) of the cases.

In 2004, criminal processes were initiated corresponding to 13,1% of the 99 homicides of unionized persons (13/99); that is, there is no information about a criminal trial in 86,9% (86/96) of those cases.

In 2005, 13,9% of the 72 (10/72) cases of homicides of union members registered reached a criminal process; there is no information about a criminal trial being initiated or car-ried out in 86,1% (62/72) of the cases.

In 2006, criminal processes were initiated in 8.3% of the 72 cases of homicides of union members, (6/72), while there is no information regarding criminal trials on the remaining 91.7% of the cases.

As for 2007, of the 19 homicides of union members regis-tered between January 1 and August 7, in only 10,52% (2/19) of the cases is there information about a criminal process, while the homicides on which there is no information of a criminal trial amount to 89,47% (17/19) of the cases.

Table 7Relation between homicides of trade unión members and initiation of

criminal processes for those crimes.

YearTotal

2002 2003 2004 2005 2006 2007

Homicides 53 106 99 72 72 19 421

PRO

CES

SES

Stag

e

Previous investigation 13 34 7 4 1 0 59Preliminary phase (instrucción)

3 4 2 1 3 0 13

Trial 4 19 4 2 0 0 29

Sentencing 1 5 0 2 2 2 12No Informatión* 6 5 0 1 0 0 12

Total 27 67 13 10 6 2 125

*The Prosecutor’s Office (Fiscalía) refers to the case but not to the stage of the process.

3�

Thus, of the 421 homicides committed against trade union leaders and members during the period of the current administration, the Prosecutor’s Office has information re-garding 125 cases – that is, 29,7% (125/421). Of these 125 cases, 47,2% (59/125) are at the stage of previous investiga-tion, meaning that a presumed perpetrator has not even been identified.

It is very disturbing that the information that the Prose-cutor’s Office presents on violations that occurred during the period is, on the one hand, more and more scarce for the citi-zens who request it and, on the other, that we may be seeing a slackening of that Office’s duty not only to initiate criminal investigations but also to sanction those found guilty.

2.3. Analysis of the report presented by the Prosecutor’s Of-fice regarding progress of the sub-unit in the framework of the Tripartite Agreement

In June and August of 2007, the Ministry of Social Pro-tection presented to the union federations information from the Prosecutor’s Office regarding the progress made in the framework of the Tripartite Agreement. The selection of the information presented was determined by the work being carried out by the Prosecutor’s in their efforts to carry for-ward criminal investigations. Also, it reflects the results of the work of the recently created “decongestion” judges.

In those reports it was established that the Prosecutor’s Office has dealt with the violations against union members contained in the ILO’s case 1787, but there is no mention there of the state of the investigations of those processes. Therefore, it cannot be determined what progress has been achieved in the work of the sub-unit with respect to that uni-verse of cases. However, the reports do give an account of the progress of the Tripartite Agreement regarding the work of the sub-unit:- The reports on the monitoring of the special thrust to

the investigations point out that 20 cases are at the pre-liminary investigation (instrucción) stage. Of those 20, 11 are being handled by the Human Rights Unit of the Prosecutor’s Office and 9 by Prosecutor’s assigned throughout the country. Thus we see that in 20 cases of

40

violence against union members the presumed perpetra-tors or participants have been identified, but we cannot conclude that this is the result of the work of the sub-unit of Prosecutor’s. Finally, the assignment of these cases to the different judicial authorities is a logistical- adminis-trative matter that does not imply progress toward over-coming impunity.

- With respect to the cases that are at the trial stage, the Prosecutor’s Office considers progress the fact that 27 cases are now before criminal judges; however, from the information it cannot be determined if this stage was reached because of the special thrust provided by the sub-unit of Prosecutor’s, or if it is due to the normal development of criminal justice. From the information available it is impossible to establish which of the ac-cused are detained or if they actually are part of the judi-cial proceedings.

- The Prosecutor’s Office reports 49 convictions as suc-cesses in the investigations of the violations of the hu-man rights of union members. However, it cannot be de-duced that this progress is the result of the determined action of the State to bring to light the truth about the cases of anti-union violence, since of the 49 convictions, one occurred in 2002, five in 2002, five more in 2003, 11 in 2004, seven in 2005, 11 in 2006, there is no date re-garding six others, and there have been only five in 2007. With absolute certainly, these last do not correspond to investigations started only in 2007.We can thus conclude that the progress report presented

by the Prosecutor’s Office on the thrust given to criminal investigations is not the result of a clear policy to investigate and punish the perpetrators, as the systematic, permanent, and selective violations against union members require. The report on earlier cases presented as progress of the special thrust to investigations reveals the scant results achieved through the implementation of the special sub-unit.

As the Prosecutor’s Office points out, it is very impor-tant to reassign all cases of violations to Prosecutor’s charged with implementing this investigative effort, but it is not suf-ficient; investigative measures and strategies are called for

41

that contribute to understand the context and the dynamics of anti-union violence in Colombia.

2.4. Impunity in cases of crimes against freedom of associa-tion

The criminal justice system establishes de crime of “vio-lation of the rights to freedom of assembly and freedom of as-sociation” and determines that whoever “prevents or disturbs a licit assembly or the exercise of the rights granted by the labor laws, or takes reprisals for a legitimate strike, meeting or association shall incur a fine40, a situation that cannot be characterized as anything but ridiculous, precisely because it takes place in a country like ours, where unions disappear as a consequence of “anti-union policies” of all kinds, in which both the public and the private sectors participate.

The same system (Article 198 of the Criminal Code) in-cludes a crime regarding the “violation of labor freedom” but focusing on forbidding, in subtle ways, social protest, since it establishes a fine as punishment for whoever disturbs the free exercise of the right to work. The same is true of Article 199, referring to “sabotage,” the only difference being that where the Article contemplates damage to goods or equip-ment, it establishes a sentence of one to six years in prison and a fine of up to 20 current legal basic salaries.

The analysis of the articles mentioned demonstrates that for the Colombian legislator it is more important to protect material goods, the property of the employers, than the right to association and union freedom, as a simple reading of the articles shows.

With regard to sanctions for the conduct described in Ar-ticle 200 of the Criminal Code, until now no employer has been sanctioned for incurring that type of practices. 41

At the present time an investigation is in progress re-sulting from a denunciation by the Confederación General del Trabajo (CGT) against the companies Supertiendas and

40. Article 200 of the Criminal Code41. InformationprovidedbyahighofficialoftheGeneralProsecutor’s

Office,whodidnotauthorizeustorevealhisname.August,2007.

42

Droguerías Olímpica for violation of the right to association and union freedom. There, the unionized workers have been compelled to give up their organization and the benefits of collective bargaining through a single form provided by the managers in each of their places of work. The complaint was filed before the General Prosecutor himself more than two months ago, and up to now we have no information on its progress.

What has been described is inadmissible; first, because of the lightness of the sentences foreseen for this type of practices, and second, because up to now we know of no em-ployer or his representative that has been sanctioned for such conducts, in a country that stands out precisely for being one of the greatest violators of the rights of unionized workers.

D..Proposals.for.overcoming.the.present.situation.The proposals refer to the two paragraphs in this chapter.

1. Proposals to prevent and repair violations to the life, freedom, and personal integrity of the members of unions and of the unions

The grave violations committed against union members require a serious and comprehensive policy of prevention and protection. In this sense, we propose:- That the Government, the President, the Vice-President,

and the Minister of Social Protection acknowledge the legitimate nature of union- related activities, of unions and of union members as a fundamental element of a democratic society. This activity must be accompanied by a massive communication campaign that gives vis-ibility to the problem and promotes positive references regarding unionism.

- That the accusations by Government and State officials against union members as guerrilleros and guerrilla col-laborators stop. To that end, a set of norms should be issued reinforcing the recognition of the unions and their activities as legitimate; directives should be issued re-garding the provision of information to the unions on the issues affecting them; and accusations by government of-ficials should be banned, with serious sanctions against those who do not comply.

43

- That the intelligence files with the names of union mem-bers and organizations be purged when the only reason for including those names is the exercise of union-related activities.

- That draft laws not be presented that would leave unpun-ished the crimes committed against union members and other human rights defenders through State intelligence.

- That the intelligence activities referred to in the statutory law of habeas data be regulated, creating mechanisms to protect the rights of persons whose personal informa-tion is contained in intelligence databases and circulates among them, thus complying with the recommendation of the Office in Colombia of the High Commissioner for Human Rights in its report for 200742.

- That Article 16 of Law 1142, which modified Article 235 of the Code of Criminal Procedure, is repealed

- Regarding the protection program, that the Government separates intelligence organs, policies, and actions from protection organs, policies, and actions, so that the latter are executed by organs with financial and administrative autonomy

- That the selection and training of the bodyguards of this autonomous organ be carried out with participation of representatives of the population groups object of protec-tion measures, building trust between those who need protection and those charged with providing it. The train-ing must include international human rights law, interna-tional humanitarian law, and state accountability. One of the selection criteria must be a clean background with no hostile positions toward the persons to be protected.

- That protection be given to witnesses of human rights violations, of breaches of humanitarian law, and of other serious attempts against human dignity (for example, sexual violence); protection must be given separately, and in different ways, from the witness protection pro-gram of the General Prosecutor’s Office.

42. ReportoftheU.N.HighCommissionerforHumanRightsonthesitu-ationofhumanrightsinColombia,2007.(A/HRC/4/48).

44

- In general terms, and within the parameters indicated, that the recommendations be implemented that are con-tained in the evaluation report on the program for the protection of witnesses and threatened persons of the Ministry of the Interior (now Ministry of the interior and Justice), prepared by Ms. Cristina Iparraguirre at the re-quest of, among others, the Office in Colombia of the U.N. High Commissioner for Human Rights and the In-ternational Labor Organization.

1.2. Measures for individual reparation of victims of anti- unionism- The State will take effective measures, in a concerted

manner, so that the victims belonging to the union move-ment have access to assistance by trusted lawyers at the criminal processes in which they take part, as well as the right to receive psychosocial assistance. The State will set aside funds from the national budget for that pur-pose.

- The union movement has presented the many proposals that emerged from the National Gathering of Victims be-longing to social organizations, which took place on July 26-28 of this year. 43 Among them, the most outstanding are comprehensive reparation and the need to include the gender perspective in reparation.

1.3. Measures for reparation of the union movement- For the union movement, collective reparation consists

of, in the first place, the full re-establishment, at the level of norms and in practice, of freedom of association and labor rights; this requires deep institutional reforms as well as measures and actions tending to restore the union movement, its prestige, its good name, and the recogni-tion of its legitimacy.

43. See the totality of the proposals in the annex: Relatoría comisiónsindical,EncuentroNacionaldeVíctimaspertenecientesaorganiza-cionessociales,26al28deJuliode2007and“Laverdadelementovinculanteconprocesosdejusticia,reparaciónindividualycolectivaylasgarantíasdenorepeticin”.DocumentadoptedbytheExecutiveCommitteeofCUT,July2007.

45

- According to international jurisprudence, collective rep-aration for the acts attributable to its agents is the sole responsibility of the State; which implies reestablishing the rights violated, compensation if possible for the harm caused, satisfaction, rehabilitation and guarantees of non repetition.

- A concrete measure directed toward non repetition con-sists in the Government supporting a project of constitu-tional reform that raises to constitutional level the rights of the victims of crimes against humanity, and establish-ing mechanisms to guarantee non repetition of paramili-tarism.

- Offer guarantees to union members that are exiled or refugees so they can return, together with their families, in conditions of security and dignity.

- Provide resources for the organization and the empower-ment of the victims in consultation with them.

2. Proposals for overcoming the untenable situation of impunity

2.1. Investigations should follow the following guidelines- Criminal investigations must be accompanied by an

analysis of the context in which the violations took place, recognizing anti-union violence as a systematic, selec-tive, and deliberate violence. Analysis of the individual case without considering reasons such as the consolida-tion of paramilitarism in different regions of the country; connivance of the State in many of the violations; the occurrence of other violations against the same victim, even if these are caused by a different perpetrator – all these divert the course of an effective investigation.

On the contrary, keeping in mind these factors that char-acterize anti-union violence in Colombia makes it pos-sible to identify investigation hypotheses consistent with the type and form of violence against union members. Additionally, the analysis must include a gender perspec-tive that establishes the specific effects of the damage on men and on women.

- In the course of the investigation, the motives of the vio-lation must be given more importance than the investiga-

46

tion against the victim. It must be presumed that when an act affects a union member, the motives of the crime can be linked to the union-related activity, unless dem-onstrated otherwise. In many cases the criminal investi-gation centers on searching the background of the victim and not on the motives of the perpetrator against the vic-tim. In many cases this practice prevents establishing the facts and identifying the intellectual (determinant) and material authors. The investigations must be watchful of maintaining the dignity of the victims – which does not mean that light should not be shed on acts compromising their responsibility. In the case of acts affecting women, in addition to the original offense, many times the vic-tims are subjected to further humiliations, due to the way in which they are interrogated and the way in which the facts are reconstructed.

- The status of union member must be presumed by the sole fact that the information comes from any workers organization, no matter that it can be proven false in the course of the investigation. The status of union member must be valued also in relation to the activities of the victim, within a reasonable period of time and not only at the moment of the violation, to the extent that the acts of violence may have been motivated by his/her union-related activities. Also to be taken into consideration are the persons related to those who carry out union activity, be it because they are relatives or because they have an-other type of relation.

- A harmonious collaboration must be established regard-ing the information from investigations between the Prosecutor’s for the progress of ILO cases with other in-vestigative units of the Prosecutor’s Office.

- The union federations demand their right to truth, jus-tice, and reparation of the victims and society’s right to know, as has been established by the United Nations and the Inter-American protection system. 44.

44. United Nations documents E/CN.4/2005/102/Add1, E/CN.4/Sub.2/1997/20 Rev.1 and AG Res. 60/147 of December 16, 2005, among which are studies and documents referring to the fight against

47

- We propose seeking the cooperation of expert forensic investigators and analysts from the Prosecutor’s Office of the International Criminal Court so they will give support to the criminal investigations of the Colombian Prosecutor’s Office.

- The cases being investigated and judged by criminal military justice must be transferred to the General Pros-ecutor’s Office or ordinary justice, in compliance with the decisions of the Constitutional Court and precise in-ternational recommendations. 45

- Investigation and sanction of crimes against freedom of association should be strengthened.

2.2. Strengthen the sub-unit and the judges with financial, logistical, and human resources so they can carry out their functions in a dignified and effective manner.

2.3. Management and supply of information about criminal investigations in cases of anti-union violence.- Inform periodically the union movement about the work

and implementation of the sub-unit, so its evolution and structuring can be revised and assessed in a concerted manner.

- Inform the union federations and the ILO regarding:- The state of the investigations on 1,987 cases about which

the Prosecutor’s Office does not provide information to the union federations.

- The state of the investigations and trials of the 399 cases of homicide that took place in the period 2002-2007.

impunity and the right of the victims to reparation. Likewise, the Inter-American protection system has consolidated doctrine and ju-risprudence on the matter. For further information see Colombian Commission of Jurists, Principios internacionales sobre impunidad y reparaciones, Compilación de documentos de la organización de las Naciones Unidas, Bogotá, 2007 and National Commission on Reparation and Reconciliation, Recomendación de Criterios de Reparación y de proporcionalidad restaurativa,. Pages 95ff, Bo-gotá, 2007.

45. See, among others, Colombian Constitutional Court, Sentence C-351 de 1998 and Inter- American Human Rights Court, Sentence in the Case Las Palmeras vs. Colombia.

48

- The state of the cases of special emphasis that the union federations have identified, as well as of those that the Prosecutor’s Office selected.

- The state of the investigations and trials in all cases of anti-union violence.

- Progress of the sub-unit and the judges in terms of inves-tigations and trials carried out since their inception, and not as the result of the action of former Prosecutor’s and judges.

4�

CHAPTER.II;.FREEDOM.OF.ASSOCIATION

(i).ARBITRARY.STATE.INTERFERENCE.IN.THE.CREATION.AND.FUNCTIONING.OF.UNIONS,.SITU-ATION.OF.UNION.REGISTRATION.AND.ELIMINA-TION.OF.UNIONS

A..The.ILO’s.normative.frameworkIn the 1994 general study on freedom of association and

collective bargaining, the Commission of Experts on the Ap-plication of Agreements and Recommendations expressed the following regarding the scope of Convention 87 on Free-dom of Association and Protection of the Right to Organize:

“108. Article 3 of Convention 87 guarantees work-ers’ and employers’ organizations freedom to function by granting them four fundamental rights:

The right to draft their statutes and administrative regulations; to elect freely their representatives; to or-ganize their administration and their activities; and to formulate their plan of action without interference from State authorities.

Article 8 of the Convention establishes that, in ex-ercising these rights, the organizations are obligated to respect legality; but, on the other hand, it specifies that national legislation must not undermine or be ap-plied in such a way that it undermines the guarantees foreseen in the Convention. During the preparatory work toward the adoption of the Convention, several members of the government observed that, even if it admitted full union autonomy, the State could not ab-stain from all intervention, since it must see to it that union activity stays within the boundaries of legality.

50

Concerned about guaranteeing the realization of this double objective, the International Labor Conference finally decided to formulate Paragraph 2 of Article 3 in the following terms: “Public authorities shall abstain from all intervention that tends to limit this right or hin-der its legal exercise.” (Emphasis ours.)

And it added: “109. The Commission considers that, in order to guarantee this right fully, the following con-ditions must be met: in the first place, the demands that can be imposed upon the labor union statutes in con-formity with the national legislation shall be only on matters of form; and, in second place, the statutes and administrative regulations shall not be the subject of previous approval with discretionary character by the authorities.”

For its part, the Committee on Freedom of Association has indicated the following: “The requirements prescribed by law for forming a union must not be applied in such a way that they hinder or delay the creation of workers organiza-tions, and any delay caused by the authorities in registering a union constitutes a violation of Article 2 of Convention 87.” (See Freedom of Association Committee Digest of Decisions and Principles, 1996, paragraphs 249 and 251; report 308, case number 1894, paragraph 536; report 316, case number 1773, paragraph 615; report 324, case number 2053, para-graph 231; report 332, case number 2225, paragraph 377; and report 334, case number 2282, paragraph 638).

B..Measures.adopted.by.the.State

1. Legislative measures taken by the StateArticle 39 of the Constitution enshrines the right of as-

sociation and grants the workers and employers the faculty of setting up, without State intervention, unions or associations whose legal constitution is produced by the simple decision of their members. The register of the founding document, which reflects the will of those who come together to found the orga-nization, is only a formal step to make the fact public.

Law 50 of 1990, in its article 44, introduced the legal concept of automatic legal standing (personería jurídica au-

51

tomática), establishing that it arises at the very same moment of the decision at the founding assembly. Later, contradicting this norm, Law 584 of 2000, in its Article 6, determined that no union can act as such, or carry out its legal or statutory functions, until it has registered its founding documents be-fore the Ministry of Social Protection, and that it can only carry them out during the period of validity of the registra-tion. Additionally, Article 4 enumerates the documents that must be presented along with the request for enrolment in the union register, exceeding the limits of the merely formal control authorized by Convention 87.

These norms were declared constitutional by the Colom-bian Supreme Court and Constitutional Court, constituting a violation of Convention 87 and disregard of Article 39 of the Constitution, not only through the legal norms already mentioned but also through the acts of the constitutionality tribunals. 46

The Ministry of Social Protection regulated the legal competence and the procedure for enrolment in the union register through various norms47 which, among other things, establishes a deadline, counting from the holding of the founding Assembly, to present the documents. If they are presented on time, the civil servant at the Ministry can re-turn the documents if he deems that any one of the formal requirements has not been met and if “the applicants present again the documents persisting in the same errors or incon-sistencies which caused the objection, the competent civil servant will reject the registration through an administrative act that is open to appeal.” 48

46. Before the Constitution of 1991 came in force, the faculty of safe-guarding the supremacy and integrity of the Constitution belonged to the Supreme Court. See Sentence of the Supreme Court in Gaceta especial, Constitutional Chamber, Tome III. Constitutional Court, Sentence C- 567, May 17, 2000.

47. Art. 365 of the Labor Code (C .S. del T). The normative corpus is made up of Resolutions 951 of 2003, 1875 of 2002, 1651 of 2007, is-sued by the Ministry of Social Protection and through Decree 1194 of 1994.

48. Internal memorandum of the Ministry of Social Protection, July 12, 2004.

52

In these norms, the Ministry determines that among the reasons for denying a union registration is that the statutes are contrary to the Constitution or the law, or that the number of founding members is smaller than that required by law, or that “the union has not been constituted with the aim of guaranteeing the fundamental right of association but rather to obtain job stability,” or that the organization does not fit the classification of union established by the law, or, finally that “the union was constituted for a branch of industry or economic activity but its members are workers in companies that are not of the same industry or branch of activity, or they are workers in the same company.”

The last three requisites mentioned clearly exceed the formal faculties of the administrative authority in confor-mity with Convention 87. The verification of contradiction with the Constitution or the law, to the extent that it implies a value judgment, belongs to an independent judicial authority, before which the worker’s organization can exercise its right of defense.

In view of this situation, the Committee on Freedom of Association has made the following pronouncement: “The legal provisions that regulate in detail the internal func-tioning of the workers’ and employers’ organizations carry great risks of interference by official authorities. In case their adoption is considered indispensable by the authori-ties, these provisions must be limited to establishing a legal frame, leaving the organizations the greatest possible au-tonomy in their functioning and administration.

The restrictions to this principle must have as their only objective guaranteeing the democratic functioning of the or-ganizations and safeguarding the interests of their members. On the other hand, they must foresee recourse to a judicial organ that is impartial and independent in order to avoid the risk of undue or arbitrary interference in the free function-ing of the organizations. (See Compilation 1996, paragraphs 331 and 332 report Case No. 2011 Par. 215).

53

2. Practical measures taken by the State

2.1 Union registration as previous authorization for the ex-istence and functioning of unions

On the basis of the information available49 (178 resolu-tions that deny registration to new unions) we can affirm that the State, through the Ministry of Social Protection, violates the right of association and union freedom by establishing a series of procedures and bureaucratic steps that have nothing to do with the right of association, establishing a previous authorization for the creation of unions.

One of the reasons that are most frequently cited by the administrative official to deny registration of a union is that the statutes of the organization are contrary to the Constitu-tion or the law. 50 The procedure followed by the Ministry to carry out the registration implies a review of the statutes by the Labor Inspector, instead of carrying out the enrolment and, if the statutes are found to be contrary to higher norms, objecting before a judge to those aspects considered illegal.

On other occasions, union registration51 has been denied with the argument that there is no indication of what type of organization is being founded, or that the type of organiza-tion selected cannot assemble the workers because it does not meet the requirements stipulated by law52, or that it gath-

49. Obtaining information has become an almost impossible task since it is not systematized, and much less centralized, at the Ministry of Social Protection. In spite of having filed several rights of petition, we have not been able to gain access to the whole of the information and it became necessary to file a tutela action for the violation of the fundamental right of access to information, which was approved by the High Tribunal of Cundinamarca. We await compliance on the part of the Ministry of Social Protection.

50. Art. 366 of the Labor Code (C. S. del T.)51. See, among others, Resolution 00001288 May 19, 2005 District

of Cundinamarca; Res. 001662 of April 26, 2004 District of Cun-dinamarca; Res. 00002921 of September 8, 2005 District of Cun-dinamarca; Res. 001142 of May 5, 2005 DT Cundinamarca, Res. 0557 of April 9, 2003, DT Cundinamarca; Res. 00001027 of April 26, 2005, DT Cundinamarca; Res. 023 of March 11, 2004 DT of Cun-dinamarca.

52. Art. 356 of the labor code (C. S. del T).

54

ers different economic activities or that the members have different types of labor relations with the State.

National legislation cannot impose the types of unions that the workers can set up. By denying union registration with this argument, the Ministry imposes a union model, which is an undue interference in the autonomy of the work-ers organization and is contrary to Convention 87.

The Ministry recognizes the right of association only to the workers who have a labor contract; in this way, the pos-sibility of association is taken away from workers with other types of labor conditions, such as provision of services, work-ers associated in cooperatives, the unemployed, pensioners, student workers, or those who have no contract at all but who provide services personally. 54

The practical consequence of this undue interpretation55 is that in Colombia, of a total of 19 million workers who pro-vide personal services under different types of contract or informally, only approximately five million would have the right to create unions – that is, less than one quarter. Addi-tionally, this situation affects in a special way female mem-bership, since the rate of informal participation is higher among women, which deepens the discrimination that they suffer in society.

The ILO Committee on Freedom of Association has stated an opinion in this regard: “All workers, without dis-tinction, including non- discrimination due to occupation, should have the right to freely establish the organizations they deem appropriate and to join such organizations.” (See Compilation 326th Report 2113, Par. 372).

The pretexts the Ministry uses to deny registration are varied. It has used arguments such as typing errors,56 or as-

53. See ILO Committee on Freedom of Association, Case 2046 Report 346.

54. See among others: Resolution 02741 of December 5, 2005, Labor Department of Antioquia; Res. 004168 of October 31, 2003 Labor Department of Cundinamarca.

55. From Art. 5 of the Labor Code (C. S. del T).56. See among others: Res. 00000782 of March 23, 2005, Labor De-

partment Cundinamarca; Res. 00002076 of August 14, 2006, Labor Department Cundinamarca.

55

signment of a different period to the meetings of board and the assembly, or attributing competences, functions, facul-ties or terms to union organs different from those foreseen in the law; 57 or, when they are unions of public employees, that they establish in their statutes the possibility of going on strike,58 or an error in the procedure for collecting union dues,59 or because the statutes create exceptional rules that can only be established by law. 60

The cases in which the Ministry has prevented the exer-cise of union freedom by the union federations are emblemat-ic; for example, in the case of the CGT, Resolution 00004860 of 2004 of the Ministry of Social Protection denied it partial registration and deposit of the reformed statutes approved in its National Congress held between September 26 and Octo-ber 2, 2004, regarding the possibility of direct affiliation to the federation, considering that they “exceed the legal sys-tem and break the structure on which is built the exercise of the right to freedom of association.” And as for the CUT, which at this moment is taking steps to register the reform of its statutes approved in its Fifth Congress in August of last year, the Ministry has objected to the inclusion of a union of pensioners in the new structure.

In all these cases, the Ministry should register the union and its statutes and challenge before a judicial authority guaranteeing due process those aspects that, in its judgment, are contrary to the law.

57. See among others: Res. 1735 of July 10, 2006 Labor Department Cundinamarca; Res. 0002641 of September 25, 2006 Labor Depart-ment Cundinamarca; Res. 004510 of November 19, 2004 Labor De-partment Cundinamarca.

58. See among others: Res. 001978 of August 27 2003, Labor Depart-ment of Cundinamarca; Res. 0004039 of December 26 2006, Labor Department of Cundinamarca; Res. 00002943 of September 8 2005, Labor Department of Cundinamarca.

59. See among others: Res.00001153 of May 8 2005, Labor Department of Cundinamarca; Res. 1075 of may 25 2006, Labor Department of Cundinamarca; Res. 001817 of August 11 2003, Labor Department of Cundinamarca.

60. See among others: Res. 001949 del 25 de agosto de 2003; Res. 000373 del 29 de enero de 2004, Labor Department of Cundinamarca.

56

There are cases that are particularly aberrant, such as de-nying registration because of lack of approval of the name, or of the copy of the statutes authenticated by the secretary, 61 or of the document approving association. Registration has been denied even for using the term “associates”, because the government official considers that it can lead to confusion between the workers organization and civil companies.

This situation has reached such extremes as moving the employer so he can participate in the process of registration of the union, 62 arguing that the employer can be affected by the results of this procedure. It would seem that the exercise of union freedom is perceived as a threat by the employers and not as a legitimate right recognized by international labor laws and which must be guaranteed by the Colombian State.

2.2 Direct revocation of the union registerIn the year 2005, the Ministry took up a practice that,

besides being in flagrant violation of union freedom, is ex-plicitly forbidden by internal norms in Colombia. It is the revocation of the entry in the register of workers unions. 63

To justify these decisions, motives of all kinds are set out, such as that due process and the right of defense of the employer were not guaranteed and therefore he was not in a situation to contest the inclusion in the register; that the union acted in bad faith, abusing the automatic registration mechanism by means of an act that did not admit appeals; that the type of union does not correspond to those stipulated in internal legislation; 64 that the organization was founded

61. See among others: Res. 001396 of July 14 2003, Labor Department of Cundinamarca; Res. 001142 of May 5 2005 , Labor Department of Cundinamarca.

62. See among others: Res. 2057 of October 31 2003, Labor Office of Girardot, which registers the organization, revoked by Resolution 004168 of October 27 2004; or Res. 00004059 of October 9 2004 Labor Department of Cundinamarca which registers, and is revoked by Res. 00004758 of December 14 2004, Labor Department of Cun-dinamarca.

63. The following unions: Sintraindu, Antrapro, Atliven, Sintrapananco, Sintraanalchoc y Sintralacteos

64. Art. 356 of the labor code (C. S. del T.).

57

with the purpose of guaranteeing job stability for its mem-bers through obtaining special treatment; 65 or that there have been no payments of ordinary dues to the union, nor presen-tation of a list of petitions or collective bargaining.

The first thing to consider is that in Colombia, in order to be able to revoke directly an administrative act, if it has re-sulted in legal situations of particular or concrete character, the explicit, written consent of the respective holder is re-quired, which in this case means asking for the prior consent of the union. If the administration considers that the admin-istrative act contradicts higher norms, then it must proceed to challenge the act so that the judges, with citation and hear-ing of the organization of the affected workers, decide on the legality of the act.

Unfortunately, a tutela action – that is, a recourse fore-seen in the internal legislation to protect the fundamental rights enshrined in the Constitution – was rejected by all instances, including the Constitutional Court. 66 Thus is ac-complished a grave violation of freedom of association, to the extent that a union register was revoked without guaran-teeing effective legal protection of this fundamental right.

2.3 Elimination of unionsTo the well-worn State strategy of liquidating public

entities (Caja Agraria, Telecom, Bancafé, Adpostal, In-ravisión, Banestado and many others), to wipe out unions once and for all with its conventional victories, now we also have to add the private sector employers tactic of un-dermining the existence of unions gradually through the freezing of personnel and the implementation of the sys-tem of third party contracting (contractors, temporary job agencies, work cooperatives), retirement plans and early pensions, selectively aimed at unionized workers.

These actions, combined with counter-demands and employers collective agreements, tend to cut down the

65. These are the so-called carrousel unions.66. Sentence T- 215 de 2006, Opining judge: Marco Gerardo Monroy Cabra.

66. SentenceT- 215 de 2006,Opining judge:MarcoGerardoMonroyCabra.

58

number of union members; then this reduction is given as grounds for judicial action in order to achieve the declara-tion of dissolution and liquidation of the workers organiza-tion and, consequently, the cancellation of the inclusion in the union register.

C..The.present.situationAfter examining 178 resolutions denying registry of new

unions, we can conclude that union registration turned from a simple formality to publicize a fact of interest to third par-ties into a prerequisite or prior authorization imposed on workers exercising their freedom of association by the Min-istry of Social Protection.

The systematic denial of inclusion in the union register has overstepped the boundaries of reasonableness, with in-terpretations that are senseless and farcical.

It can be said that almost half of the unions that are cre-ated face serious problems in the process of registering, and the majority of them do not achieve that goal. The result is that thousands of workers are left out of unions, their rights unprotected.

In contrast, the creation and registry of companies is made easier each day; the workers have no right to intervene in the process of public registry of private companies, be-cause freedom of enterprise is fully in force in the country.

Great difficulties plague also the registry of statute re-forms by the unions and the naming of their executive com-mittees; this hinders the normal functioning of the unions.

D..Proposals.for.overcoming.this.situation1. That the entire set of norms issued by the Ministry of So-

cial protection relative to union registry be revoked and a new set of norms be issued in conformity with Con-vention 87 and with the doctrine of the Committee on Freedom of Association, product of social dialogue, and that the emergence and functioning of unions be guaran-teed, free of all interference from the Ministry of Social Protection, the State as a whole, and the employers.

2. That the resolutions issued by the Ministry of Social Pro-tection that have denied inclusion in the register of new

5�

unions, executive boards, and statute reforms be revoked and, instead, that the registry process be determined case by case according to the will of the unions.

3. That the administrative acts through which the Ministry of Social Protection revoked the inclusion in the union register be revoked if the unions so wish it and a new registry process be undertaken.

4. That the unions and the workers who have suffered dam-ages as a result of the resolutions that denied them in-clusion in the union register have their rights restored and comprehensive reparation be granted, in accordance with the parameters agreed upon in the framework of so-cial dialogue.

(ii).SYSTEMATIC.NONCOMPLIANCE.WITH.THE.RECOMMENDATIONS.ON.CASES.ISSUED.BY.THE.COMMITTEE.ON.FREEDOM.OF.ASSOCIATION.AND.ADOPTED.BY.THE.ADMINISTRATIVE.COUN-CIL.OF.THE.ILO.(2003-2007)

A..The.ILO.normative.frameworkIn adhering to the International Labor Organization,

each member state commits itself to respect a certain num-ber of principles, including the principles of freedom of as-sociation, which have become a norm of customary law that is above the treaties. 67

In 1926, the members of the ILO, including Colombia, established the control organ of the treaties of the ILO, the Committee of Experts on the Application of Conventions and Recommendations (CEACR), whose function is to carry out an impartial evaluation of the state oc application, in legisla-tion and in practice, of the international labor laws. Addition-ally, in 1951 the State concurred also with the establishment of the Committee on Freedom of Association. Since then, the Committee’s task is to examine individual complaints on

67. ILO. Committee on Freedom of Association. Digest of Decisions and Principles of the Freedom of Association Committee to the Gov-erning Body of the ILO. Geneva, 5th Ed., revised, 2006. Annex 1, Par. 51, p. 255.

60

violations of union freedom and to issue concrete decisions on the different cases.

The Constitutional Court considered that Conventions 87 and 98 of the ILO are part of the Colombian constitution-ality block 68 and that they therefore prevail in the internal legal order. 69 Furthermore, Article 9 of the Constitution es-tablishes that the foreign relations of the State are founded (…) “upon the acknowledgment of the principles of interna-tional law accepted by Colombia,” among them the principle according to which all treaties in force bind the parties and must be complied with by them in good faith.” 70

Likewise, the Constitutional Court has acknowledged the obligatory nature of the recommendations of the Com-mittee on Freedom of Association, adopted by the Adminis-trative Council, pointing out that “the Government’s neglect of the international obligations acquired by Colombia cannot be the source of rights for the administration or cause of ex-tinction of the rights of the workers.” 71

B..Measures.adopted.by.the.StateProof of the systematic noncompliance with the Freedom

of Association and Protection of the Right to Organize Conven-tion (C87) and of the Right to Organize and Collective Bargain-ing Convention (C98) is the great number of complaints filed by the unions against employers and the government.

Regarding the recommendations made by the Commit-tee on Freedom of Association, the great majority of them has not been complied with, and the internal order contains no legal or other mechanism allowing the workers organiza-tions to demand compliance. 72 Only now is the Commis-

68. Sentences T-568 of 1999, T-1211 of 2000, T-603 of 2003, T-979 of 2004 and T-695 of 2004.

69. Art. 93 of the Constitution.70. Vienna Convention on the Law of Treaties. Art. 26.71. Sentences T-568 of 1999, T-1211 of 2000, T-695 of 2004, T-979 of

2004 and T-603 of 2003.72. The tutela action, foreseen in Art. 86 of the Constitution, has proved

an appropriate and effective tool when the case is selected by the Constitutional Court for judicial review after it has been denied in first and second instances. Judicial review is a faculty of the Consti-tutional Court,

61

sion on conflict resolution beginning to act before the ILO to promote compliance with the Committee on Freedom of As-sociation recommendations, though that mechanism is not a coercive tool for exigibility.

C..The.present.situationIn the period 2003-2007, 57 complaints have been filed

before the ILO by workers organizations for the systematic and repeated violation of rights derived from freedom of as-sociation.

1. Types of cases and unions affected

1.1 Protection of the fundamental rights of union members, Case 1787

Regarding this case, the Committee on Freedom of Asso-ciation has concluded and recommended, among other points, the following:(i) The rights of the workers organizations can be exercised

only in an atmosphere free of violence, pressure, or threats against the leaders and members of the organiza-tions;

(ii) Take the necessary measures to carry forward all the investigations initiated and put an end to the intolerable situation of impunity in order to punish the perpetra-tors;

(iii) In the case of kidnappings, disappearances, and threats, take measures to carry out serious investigations;

(iv) Regarding protective measures for unionists, request infor-mation on protective measures and security schemes being implemented, as well as those to be adopted in the future. 73

1.2 The right of workers to set up unions without previous authorization

In view of these facts, which are a serious attack against union freedom, the Committee on Freedom of Association recommended proceeding without delay to register the foun-dation document, the list of members of the board, and the statutes of the organization that had been denied this right; 74

73. Committee on Freedom of Association, Case 178774. C. F. A. Case 2363.

62

it recalled that although the founders of a union must observe the formalities foreseen in the legislation, these formalities, in turn, must not become obstacles to the free creation of work-ers organizations and it asked the government to take mea-sures so that, as soon as compliance with the requirements is verified, inclusion in the union register is carried out. 75

In its recommendations the Committee on Freedom of Association proposes also rehiring the workers that had been let go as a result of the creation of the union; and, if this is not possible, to grant them reparation.

1.3. The right to elect their representatives freelyIn various reports,76 the Committee on Freedom of As-

sociation has given an opinion with respect to the impedi-ments for the registration of executive boards or any of their positions.

In view of these facts, the Committee on Freedom of As-sociation recommended registering the union boards and, in case the Ministry considers that the minimum requirements have not been met, carry out the registration and wait until the judicial authority has rendered a judgment regarding the fundamental issue. 77

1.4 The right to strikeVarious workers organizations, from both the private

and the public sectors, filed complaints demanding guar-antee of the right to strike, derived from the right they have to “organize their administration and their activities and to formulate their program of action” without interference by the authorities.78

In all these cases, the Committee on Freedom of Associa-tion has recommended that the government not penalize the workers for exercising a legitimate right, such as the right to strike; that it amend its legislation in order to abolish the faculty of the Ministry of Social Protection to determine the

75. C. F. A. Case 2046.76. Reports 322 of 2000, 324 of 2001, 327 of 2002, 330 of 2003, 332 of

2003, 334 of 2004 and 335 of 2005.77. C. F. A, Cases 2046, 2384 y 2448.78. ILO Convention 87, Art. 3.1.

63

legality of a strike; and that this faculty be reserved for an independent body, which can be a judicial authority.

That the undue expansion of the concept of essential pub-lic service be stopped, which is now used to unjustly prohibit strikes in all kinds of activities related to public services and others, such as the extraction of oil. At the same time, the provision of minimal services can be regulated though tri-partite consultation. 79

1.5 The right to collective bargainingWorkers organizations from various economic sectors

and with members belonging to both public and private en-terprises filed complaints against the government and their respective employers due to denial of collective bargaining.

These complaints can be classified in two groups: the first, made up of the unions that bring together public ser-vants linked legally to the State, known as public employees, whose right to collective bargaining is not recognized; the sec-ond, which gathers workers of the private sector, whose right to collective bargaining is recognized but whose employer, in complicity with the Minister, disregards that right while guaranteeing it for other unions present at the workplace.

The Committee on Freedom of Association recommend-ed modifying legislative provisions so that public employees can enjoy the rights derived from the conventions ratified by Colombia, including the right to bargaining and to strike.80 As to the arguments presented by the representatives of the workers so they would be guaranteed sufficient time to carry out their tasks as representatives, the Committee that, although a workers representative could be required to ob-tain permission from his superiors before taking time off for union activity, such permission should not be denied without just cause. 81

79. C. F. A, Cases 2046, 2356 y 2355. The articles that it recommends changing are 430 y 451 of the Labor Code.

80. C.F.A,Case2331.81. C.F.A,Case2239.

64

1.6 Consultation with the workers and employers organizationsIn view of the restructuring of public bodies, the unions

from that sector filed complaints for anti-union discrimination (termination of work relationship of union leaders as well as of a great number of union members without the judicial au-thorization foreseen in the law, particularly through firing, “voluntary” retirement plans, and “induced” conciliation); for lack of consultation with the unions on the restructuring processes; and for the rehiring of dismissed workers under the form of provision of services without the possibility of joining unions.

In some cases, the termination of work relationships took place in violation of current collective contracts that guaran-teed job security.

The Committee urged the government to take measures so that in future restructuring processes due consultation takes place with the appropriate unions. 82

1.7 The right of association of independent contractors and of workers of the Cooperatives of Associate Work

Complaints were filed before the Committee on Freedom of Association related to the impossibility for independent contractors and cooperative workers to organize in unions.

In view of these facts, the Committee on Freedom of Association recalled that, by virtue of Convention 87, all workers, without distinction, enjoy the right to join the orga-nization of their choice, and the government has the obliga-tion to assure compliance with this norm.83

1.8 ReinstatementThe Committee on Freedom of Association has made a rec-

ommendation to the State to reinstate fired workers enjoying special union protection ( fuero sindical) when the required judicial authorization was not obtained before firing them.

Regarding this matter, the Committee on Freedom of Association reiterates and requests that the government take measures to reinstate the workers without loss of salary. 84

82. C. F. A, Case 2151.83. C.F.A,Cases2151,2239,2448.84. Committee on Freedom of Association, Cases 2226, 2355, 2097,

2356.

65

2. ViolatorsThe great majority of the complaints regarding violations

of freedom of association involve the public sector, with a percentage of 60.46%, while those filed against private com-panies represent only 39.64%.

The employers belonging to the public sector run from the national government itself to territorial entities, through decentralized State bodies, as well as commercial and indus-trial enterprises belonging to the State.

3. State of compliance with the recommendationsFrom the information available to us, there is no known

Committee on Freedom of Association report whose recom-mendations have been complied with fully. It can thus be said that, in general terms, there is a deliberate will by the State and the employers not to comply with them.

This refusal to comply with the recommendations is based on various arguments that lack any serious legal grounds. Among those that stand out is the argument that because the reports are provisional, they are not binding – al-though the Committee on Freedom of Association itself has made clear to the government what matters are definitive and which remain open, awaiting information from one of the parties. 85 Another argument is that the Conventions do not contain any norms that make it compulsory to comply with the recommendations of the control organs, in spite of the fact that the Constitutional Court has recognized the binding nature of the recommendations.

On the other hand, there is no effective judicial recourse to demand coercively compliance with the recommendations. As has been mentioned, the tutela action – a legal mechanism for judicial protection of fundamental rights – has proved ef-fective only when the case is selected for judicial review by the Constitutional Court, a faculty of that body.

D..Proposals.for.overcoming.this.situation1. Approve a set of norms through which mechanisms, pro-

cedures, and instruments can be established for com-

85. Report 343, Case 2355.

66

plying with the recommendations issued by the Com-mittee on Freedom of Association and adopted by the ILO Administrative Council.86

2. Implement immediately the Special Commission for Conflict Management before the ILO, for an effective management of the cases with recommendation, for which the necessary human, physical, and financial resources must be obtained.

3. Establish a deadline no longer than six months for full compliance with the recommendations of the Committee on Freedom of Association.

(iii).THE.RIGHT.TO.STRIKE

A..The.normative.framework.of.the.ILOIn Colombia the right to strike is constitutionally rec-

ognized, both in the Constitution itself (Art. 56) as well as through its inclusion in both the San Salvador Pact and the International Covenant on Economic, Social, and Cultural Rights, instruments that are part of the Colombian constitu-tional block and thus prevail in the internal legal system.87

On the other hand, a reiterated and consistent interpre-tation by the ILO control organs states that Convention 87, of which Colombia is party, foresees the right to strike as a prerogative of the unions in determining their plan of action and organizing their activities, without interference from the authorities.

Likewise, the State has been object of constant recom-mendations and observations by the Committee on Freedom of Association and CEACR, in the sense that its legislation and practice with regard to strikes do not conform to interna-tional obligations derived from Convention 87.

B..Measures.adopted.by.the.StateThe legislation restricts strikes to a phase of collective

labor conflict that begins with the presentation of a list of

86. In Colombia a mechanism exists for complying with the recommen-dations of the Inter- American Commissions on Human Rights and those of the Human Rights Committee, established in Law 288 of 1996.

87. Art.93oftheConstitution.

67

petitions by the workers organization and must follow the phases foreseen in the substantive labor norms. The last of these phases is the strike declaration and the realization of the strike itself. Once the strike begins, and after a certain lapse of time (60 days), the Ministry of Social Protection has the faculty to convoke a compulsory arbitration tribunal, which puts an end to the strike.

This narrow normative conception compares with the comprehensiveness of the doctrine of the Committee on Freedom of Association, for which the strike is allowed as an exercise in solidarity and as part of social and political struggles, in addition to its protest character.

The authorization to the Ministry to declare the strike il-legal, the prohibition to the federations and confederations to call the strike, the undue expansion of the concept of essen-tial public services, and the possibility – already mentioned – of convoking compulsory arbitration tribunals while the strike is being carried out are some of the most prominent measures now in force which negate the right to strike.

C..The.current.situationIn this context, the dynamics of union activity in Colom-

bia develops mostly at the margins of legality; since legality is so narrowly defined that it practically prevents the realiza-tion of days of strike action and labor struggles. The great-est number of actions are carried out in the form of work stoppages and protests and are led by economic sectors and labor unions excluded from recognition as such and from the exercise of the right to strike.

In the period 2005-2007, the dynamics of the union move-ment has behaved as shown on Table 1: In first place are the days of protest, of which there have been 12 thus far in 2007, with a participation of 37.5%; they are followed by work stop-pages, with 18.8%; and, last, there are other types of action as response to firings, non-payment of salaries, violation of rights, closing of companies, etc. It is important to point out the days of protest are, for the third year in a row, the most important activity, followed by work stoppages.

The days of protest exceed the limits of legal rules. Most of the time they are nation-wide and involve not only the union movement but also other popular and social sectors.

68

Many of them reflect in their slogans national problems such as the defense of the social state of law, against the free-trade agreement with the United States (TLC in Spanish), for the defense of public health and education, for the defense of the transfer of resources to the departments and even, in some cases, a denunciation of “parapolitics” and the responsibility of the national government in the crisis.

A significant fact is the decrease in strikes, which in the decades of 1970 and 1980 were one of the most recurrent forms of union activity, and of which there have been none in 2007 thus far. As for the period May 2005-April 2006, there were 8, and in the same months of 2006-2007, there were only 2.

The union federations hope that, with the support and advice of the permanent local office of the ILO in Colom-bia, will begin an urgent process of legislative and statutory changes, so that the right to strike goes from being a mere mention in the norms to a right fully recognized and guaran-teed by the authorities in the country.

Likewise, we consider that the actions contrary to law of the Colombian government and employers must give way to a situation in which the workers who have been unfairly fired and deprived of their means of subsistence will be reinstated and repaired comprehensively.

D..Proposals.for.overcoming.the.situationIn order to guarantee the enjoyment of the right to strike,

it is necessary to adopt legislative measures and practices recommended by the control organs of the ILO.1. On the one hand, it is necessary to abolish the faculty of

the Ministry of Social Protection to declare strikes illegal and to authorize the firing of the workers who participate in the movement.

2. Likewise, it is indispensable to recognize the right of federations and confederations to call strikes, in order to facilitate and promote negotiations by industrial branch.

3. Generally, the norms must be revoked that reduce the strike to a final measure in a labor conflict between a company and its workers, and go over to a conception of strike compatible with the doctrine of the Committee on Freedom of Association, in which the strike is a funda-

6�

mental right of the workers, used to promote salary and social demands, public policies, and solidarity.

4. It is indispensable to adapt the legislation to the strict concept of essential public services and to introduce the concept of minimal services for those public services that affect the population most intensively.

5. Finally, it is necessary that the government and the em-ployers, in implementing social dialogue with the union federations, agree on the mechanisms and measures that must be put into place to restore the rights of workers unfairly fired and deprived of their work to exercise their legitimate right to participate in a strike; and, in all cases, that they be granted compensation and that the union movement as a whole be repaired, since many workers organizations are being destroyed and seriously hindered as a result of firings motivated by the illegitimate declaration of illegality of strikes.

(iv).OBSTACLES.TO.COLLECTIVE.BARGAINING

A..The.normative.framework.of.the.ILOAlthough the 1991 Constitution in its Article 55 en-

shrines the right to collective bargaining, the State and the employers evade this provision through the normative and factual restrictions they have placed in the way of the effec-tive exercise of this right.

Convention 154, in its Article 2, defines collective bar-gaining as “… all negotiations which take place between and employer, a group of employers, or one or more employers organizations, on the one hand, and one or more workers or-ganizations, on the other, with the purpose of:a) Determining working conditions and terms of employ-

ment;b) Regulating relations between employers and workers;

and/orc) Regulating relations between employers or their orga-

nizations and one or more workers organizations, or to achieve all these goals at the same time…”Article 5 of the same Convention refers to the Promotion

of Collective Bargaining: 1. Measures adapted to national

70

conditions shall be taken to promote collective bargaining 2. The aims of the measures referred to in paragraph 1 of this Article shall be the following:(a) Collective bargaining should be made possible for all

employers and all groups of workers in the branches of activity covered by this Convention;

(b) Collective bargaining should be progressively extended to all matters covered by subparagraphs a), b) and c) of Article 2 of this Convention;

(c) The establishment of rules of procedure agreed between employers’ and workers’ organizations should be encour-aged;

(d) Collective bargaining should not be hampered by the ab-sence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules;

(e) Bodies and procedures for the settlement of labor dis-putes should be so conceived as to contribute to the pro-motion of collective bargaining.In its Article 4, Convention 98 on the right to organize

and to bargain collectively establishes that in each State “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full develop-ment and utilization of machinery for voluntary negotiation between employers or employers’ organizations and work-ers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agree-ments.”

In this context, Recommendation 163 of 1981 on the pro-motion of collective bargaining states as follows: “Measures appropriate to national conditions shall be taken, where nec-essary, so that collective bargaining can be carried out at any level and, in particular, at the level of establishment, branch of activity, industry, and at the regional or national level.”

Based on Conventions 87 and 98, the Committee on Free-dom of Association has decided the following: “633. Legisla-tion should not hinder collective bargaining at the level of industry.” “876. If a government wishes that the clauses of a collective convention still in force fit the country’s economic policy, it must try to convince the parties that they volun-tarily take into account such considerations, without impos-

71

ing on them a re-examination of the collective conventions in force.” “895. The Committee considers that the exercise of the prerogatives of the state authorities in financial mat-ters in such a way that it hinders or limits compliance with the collective conventions previously negotiated with public entities is not compatible with the principle of freedom of bargaining.

For its part, the Commission of Experts on the Applica-tion of Conventions and Recommendations in its comments on Colombia and the collective bargaining conventions in 2002, expressed:

“… the Commission requests the government to take measures to guarantee that collective pacts are not used to undermine the position of the labor unions and the possibil-ity in practice of entering into collective conventions with them; and to provide information on the total number of col-lective conventions and collective pacts, and on the number of workers covered by one and the other.”

In the domain of the American Hemisphere, the Inter-American Democratic Chart, approved unanimously at the OAS General Assembly in Lima on September 11, 2001, es-tablished, in its Article 10, the following:

“The promotion and strengthening of democracy require the full and effective exercise of workers rights and the appli-cation of basic labor norms, as they are enshrined in the ILO Declaration on the Principles and Fundamental Rights in the Workplace and Monitoring, adopted in 1998, as well as other similar basic conventions of the ILO. Democracy becomes stronger with the betterment of the working conditions and the quality of life of the workers of the Hemisphere.”


1. The Constitutional referendum of 2003A hard blow to collective bargaining began to be devised

at the beginning of President Uribe’s mandate; the referendum

called for in 200388 included in its Question Number 8 the fol-lowing text for approval:

88. Through Law 796 of 2003.

72

“When the present constitutional reform comes into ef-fect, no one who qualifies for a pension shall be able to re-ceive a pension higher than twenty five (25) basic legal cur-rent monthly salaries charged to public resources. Exempt are those who have acquired rights and who are covered by excepted and special pension plans.

The applicability of exempted or special pension systems, and of those arising from norms and agreements between citizens of any kind, shall expire on December 31, 2007, with the exception of the pension system applicable to Presidents of the Republic, which shall come into effect on the date of effectiveness of the present constitutional reform.

The transitional system shall be regulated by the Gen-eral Pensions System Law.

The pension requisites and benefits for all persons be-ginning when the present constitutional reform comes into effect, with the temporary exceptions mentioned shall be those established in the General Pensions System Law. No provisions of any kind shall be issued, and no agreement of any kind made between citizens, that stray from what is established therein. With the exceptions foreseen in the in the Law on the General System of Pensions, beginning when the present constitutional reform comes into ef-fect, no old-age pensions shall be recognized for persons younger than 55 years of age…”

The referendum was not approved, as it did not obtain the minimum number of votes required by internal norms.89 The government did not back down, however, and it presented to Congress a bill changing the pension system and, in particu-lar, limiting the possibilities of collective bargaining of the workers organizations. 90

2. Legislative Act 1 of 2005In its provisional Paragraph 3, Legislative Act 1 reads:

“The provisions relating to pensions contained in pacts, col-lective work agreements, judgments, decisions, and valid

89. Law 134 of 1994.90. Article48oftheConstitutionwasamendedbyLegislativeAct1of

2005.

73

agreements that govern at the time of validity of this Legisla-tive Act shall remain legally binding for the duration initially stipulated. In the pacts, agreements, judgments or decisions subscribed between the coming into force of this Legislative Act and July 3, 2010, no stipulation shall be made regarding pensions more favorable than those currently in force. They shall, in all cases, lose validity on July 31, 2010.”

This constitutional norm forbids collective agreements on matters regarding terms of employment such as pensions; it also establishes July 31, 2010 as the last deadline to leave agreements on this topic without legal footing.

3. Arbitration tribunals that review collective agreements in their entirety

Some unions prefer not to initiate collective bargain-ing for fear of losing the conventional benefits they have acquired, since the Supreme Court has granted the Arbitra-tion Tribunals the faculty of reviewing collective agreements in their entirety, beyond the petitions list presented by the workers organization.

Furthermore, the employers delay the setting up and the results of the tribunal, holding up the assignment of the arbi-ters and challenging the legality of the judgments, while they promote the disaffiliation of the union members and impose a collective agreement.

4. Legal prohibition of collective bargaining for pubic servants

The Colombian government approved ILO Convention 151 (the Labor Relations (Public Service) Convention)91 on “the protection of the right to freedom of association and procedures for determining conditions of employment in the public service.” However, in the Substantive Labor

Code92 the ban remains against public employees present-ing lists of petitions and engaging in collective bargaining.

91. Law 411 of November 15, 1998.92. “Article 416: Restriction of functions: Unions of public employees

cannot present lists of petitions or engage in collective bargaining; but the unions of other official workers enjoy all the rights of other workers organizations, and their lists of petitions will be processed in the same terms as the others , even though they cannot strike.”

74

Regarding this topic, repeated recommendations93 have been made to the government about the need to establish mechanisms to make possible collective bargaining by pub-lic employees, with no results. The distinction remains be-tween official workers, who do enjoy full rights to negotiate, and public employees who, according to the jurisprudence of the Constitutional Court, have limited rights on this matter:

“(…) nothing in the Charter goes against public employ-ees formulating respectful petitions to the authorities about their working conditions and terms of employment and that they discuss these with them in order to reach agreement on the matter, which means that the right to collective bargain-ing cannot be considered repealed. However, and in contrast with the situation of official workers, who enjoy full bargain-ing rights, the search for negotiated and concerted solutions cannot affect the faculty that the Charter grants the authori-ties to determine working conditions unilaterally…”94

93. Committee of Experts on the Application of Conventions and Rec-ommendations: - 2003 “The Commission urges the government to include in its next report to the Commission information regarding all measures taken on the subject [regulation of the right to collective bargaining by public employees] and hopes to see tangible progress in the near future.”

- 2007 “The Commission makes note of comments that indicate that the Substantive Labor Code does not allow public employees to negotiate collectively. The Commission requests the government to take the necessary measures to regulate collective bargaining by public employees.”

By virtue of Constitutional Sentence C-1234/2005 (regulation of the right to collective bargaining by public employees), the Commission asks the government to “take the necessary measures to regulate the right to collective bargaining by public employees in conformity with the Convention [No. 154].”

Commission on the Application of Norms: - 2003 “The Commission made an urgent appeal to the government

to take immediate measures to guarantee the full application of the Convention [No. 87] in the legislation as well as in practice”

- 2004 “Once again, The Commission made an urgent appeal to the government to take immediate measures to guarantee the full ap-plication of the Convention [No. 87].”

94.. ColombianConstitutionalCourt,SentenceC3771998.

75

C..The.present.situation

1. Decrease in collective contracting

Table 8Conventions, pacts and coverage of collective contracting

YearCollective

Conventions*Collective

Pacts**Union

Contracts***Total

InstrumentsTotal

coverage1994 496 321 817 196.241

1995 517 307 824 230.472

1996 607 334 4 945 258.713

1997 376 257 1 634 203.928

1998 502 252 1 755 125.386

1999 207 172 379 108.744

2000 438 129 4 571 186.963

2001 328 149 6 483 115.153

2002 496 200 4 700 176.774

2003 173 110 1 284 72.244

2004 426 192 2 620 134.244

2005 200 160 360 99.336

2006 285 70 355 60.462

Source: Ministry of Social Protection and calculations by National Union School (ENS).*Art. 467 of the Labor Code (CST): “A collective convention is that which takes place between one or several employers or association of employers on the one hand, and one or several labor unions or union federations on the other, to establish the conditions that rule labor contracts during their duration.” **Art. 481 CST. Collective pacts are agreements between employers and non- unionized workers.***Art. 482 CST. “By union contract is understood a contract between one or several labor unions and one or several employers or employers unions for the provision of services or the execution of works by its members.”

The above figures do not include the agreements that some State institutions negotiate with unions of public employees, who have a very precarious bargaining level, since the nego-tiations exclude fundamental aspects of labor relations such as hiring, job stability (administrative career) and modal-ity of remuneration. Furthermore, regarding these types of contracts, it is difficult to register and monitor them, since they are not registered at the Ministry of Social Protection.

Also not included are collective contracts that have not been renegotiated because the unions have decided not to challenge theirs.

Collective bargaining remains marginal in our country; in 2006, only 60,462 persons were covered by some kind of

76

collective labor contract. If to that number we add those cov-ered from 2005, since the majority of these agreements are negotiated for two years, then it appears that 99,336 persons have benefited, or a coverage of only 0.9% of the economi-cally active population; that is, 22.96% less than in the pe-riod 2003-2004.95

Exceptionally, and as proof that obstacles can be over-come with political will, recently the mayor of Bogotá and the governor of Valle department reached agreements with unions of public employees invoking the ILO legal frame-work.

Until 1998 an average of 795 collective labor contracts per year, benefiting an average of 202,948 workers annually. Beginning in 2000, the number of agreements negotiated went down to 517, that is, a reduction of 34.96%. Also lower is the number of workers benefited, down to 130,786, which is equivalent to a reduction of 35.55%.

This situation does not arise only at this moment; it is part of a tendency that has been studied in the long term (1994-2006). According to calculations carried out, in 12 years there has been a reduction of 56.54% in the number of collective labor contracts, the decrease being greater in collective pacts (-78.19%), than in collective conventions (-42.54%). For its part, the coverage in contracting falls dra-matically too, by 69.18%.

The low coverage of the collective conventions in the country has several explanations: the climate of anti-union violence that prevails, the processes of precarization, the rise in precarious forms of contracting in which no legal or prac-tical possibility of negotiating exists, and the organizational structure of the unions, promoted by law, where management and trade associations prevail, in detriment of organizations by branch or economic activity.

2. Collective pacts undermine collective bargainingIn order to undermine collective bargaining through the

unions, the legislation includes a legal scheme centered on col-

95. Source: Ministry of Social Protection and calculations by National Union School (ENS).

77

lective pacts with non-unionized workers. In practice, such collective pacts are adhesion contracts in which the workers have no right to bargain because the employer forces them to subscribe an agreement drafted solely by him, under threat of being fired.

The employers quite often impose collective pacts with better conditions for non-unionized persons than for union members who enjoy collective conventions. It is auspicious that the Constitutional Court, in referring to these differences, established the principle of equality; but this decision has not been enough to prevent that this practice continues, under the benevolent gaze of the labor authorities.

Collective pacts, which make up more than 30% of the labor agreements between employers and workers, are clear-ly an anti-union strategy by the employers, who use it to pre-vent the forming of new unions or to weaken existing ones.

3. Arbitration tribunals against victories achieved by the labor movement

According to data obtained from the Ministry of Social Protection, the majority of arbitration tribunals took place in the sector of communal, social, and personal services, and they involve primarily public entities, mainly munici-palities, that refuse to negotiate conventional agreements with the unions.

Another aspect is that the greater part of the unions involved are industry-based unions that present a petition list on behalf of their members at a given company or in-stitution, but not having the legal power to call a strike (since the union can vote in favor of a strike only if its members make up the majority at the company) they are obligated to turn to the arbitration tribunal.

4. Public employees are excluded from the right to col-lective bargaining

Although according to the Ministry’s figures, the great-est proportion of unionized workers today are found in the public sector (58.4%), the greater part of the negotiations take place in the private sector, 323 in 2005 (89.73%) and 199 in 2006 (94.77%).

78

In 2006, only 11 collective negotiations took place in the public sector, 7 related to municipal workers and only 2 to workers of the departments. These figures stand in contrast with the total number of municipalities in Colombia, 1,094; collective negotiations took place in only 2.74% of them. With regard to the departments, in the last four years only 5 collective work agreements have been negotiated there, rep-resenting only 15.15% of the total number of departments.

These figures are due, among other reasons, to the poli-cies of restructuring that are being applied and that have meant the virtual extinction of the official worker – that is, the worker with a labor contract – and the liquidation of many public entities that had collective conventions such as Caja Agraria, Telecom, Audiovisuales, Adpostal, Instituto de Seguro Social, Bancafé, etc.

5. Collective bargaining: scattered and dismemberedAccording to the information available,96 the stron-

gest negotiating dynamics is shown by the industry-related unions (70.98%), followed by those of enterprises (8.16%) and, lastly, those related to trade groups (1.12%). However, this is in contrast with the structure of the union organization that prevails in the country, where 52.11% of the unions are related to trade groups, 38.37% are based in enterprises, and only 8.92% are industry-based.

Regarding the dynamics shown by industry-based unions with respect to collective bargaining, this does not mean that in Colombia collective bargaining takes place at the level of economic branch or sector. On the contrary, traditionally it has been said that the legislation, by referring to the employ-er in singular and not in plural, fails to authorize bargaining at the enterprise scale, no matter if who puts forward the conflict is an organization related to an enterprise, an indus-try or a trade group. In practice, the industry-based unions are obligated to negotiate enterprise by enterprise, like any rank and file union.

96 Database and calculations of the ENS.

7�

D..Proposals.for.overcoming.this.situation1. It is urgent that the judges, including those of the Con-

stitutional Court and the Supreme Court, in appeals on judgment avoidance, abstain from involvement in deter-mining salary increases and financial terms of employ-ment, so that these aspects can be determined freely by the parties in the framework of collective bargaining.

2. Likewise, the Supreme Court must be kept from continu-ing to grant arbitration tribunals, on the basis of jurispru-dence, the jurisdiction to refer to all aspects of the agree-ment. It must be clearly established that the Court is ex-ceeding its power, thereby distorting collective bargaining.

3. It is imperative that the government complies with the recommendations on collective bargaining of public em-ployees and that their application be regulated on the ba-sis of dialogue with the workers organizations.

4. In practice there must be guarantees that collective bar-gaining is carried out at the level of industry, and not only at the level of enterprise. This requires a cultural change in the unions, but it also implies that the employers ac-cept negotiating with this type of unions and requires that the State promote it by removing the legal obstacles that still persist in the way of collective bargaining.

5. The State must be the first to set the example of compli-ance with union freedom; this is why the national gov-ernment must lead actions so that all levels of public ad-ministration facilitate and promote collective bargaining with existing labor organizations.

(v).UNION.MEMBERSHIP

A..The.normative.framework.of.the.ILOILO Convention 87 recognizes the right of all workers to

establish and join the organizations of their choosing.Article 11 of that Convention states:“Each Member of the International Labor Organization

for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize.”

With regard to this principle, the Freedom of Associa-tion Committee has established the following: “The right of

80

the workers to establish freely the organizations of their own choosing cannot be considered to exist unless it is fully ac-

knowledged and respected de facto and de jure.”97

B..Measures.adopted.by.the.StateSeveral of the legislative and practical measures de-

scribed in other paragraphs have an impact on union mem-bership, particularly the persistence of violence, the hostile environment toward the legitimacy of the unions, the norma-tive framework for the creation and functioning of unions, the practices of the Ministry of Social Protection to hinder union registry, the expansion of precarious forms of contract-ing, and the employers practices that in many cases amount to a veritable and premeditated anti-union behavior.

C..The.current.situation

1. Evolution of union membership in ColombiaThe information available98 indicates that the union

movement saw a period of significant growth between 1970 and 1984; between 1984 and 1990, it maintained its member-ship mass, although the rate of unionization declined; and beginning in 1991, as a result of the application of labor flexi-bilization, and in particular with the new forms of contract-ing labor through civil and cooperative contracts, reduced the number as well as the rate of unionization. The last up-date of the union census reveals a total of unionized persons of 831,000.

2. Union participation by branch of economic activity for the years 1�84, 1��2, 2000 and 2005

A review of the weight of the union members in each branch of economic activity with relation to the total of unionized persons99 reveals a transformation in the Colom-

97. Freedom of Association Committee. Digest of Decisions and Prin-ciples, 1996 Par. 271.

98. Census of theMinistry of Social Protection andUnionCensus oftheENS,period1947-2005.99MinistryofLaborCensus,andENSUnionCensus.

99. MinistryofLaborCensus,andENSUnionCensus.

81

bian union movement. While in 1984 there were three big economic activities – that is, transport and communications (24.7%), industry (14.3%), and public administration and personal services (38%) – that had an important weight in the whole of unionized persons, in 2005 the bulk of unionization concentrated in public administration and personal services (56.35%) and, within this branch, workers at the service of the State.

Unionization in industry and transport and communica-tions services has diminished due to legislation that limits union membership; to an official policy of liquidation of en-terprises leading to the elimination of their unions; and to the illegal practice of the employers, tolerated by the authorities, to stimulate pacts and improvements of salary and benefits to those who leave the unions.

3. Working population and unionized population by eco-nomic branch

Branch of activity

Working Population Unionized Popùlation 2005

Rate of unionzation2002 2003 2004 2005

No well specified 4,627

Agriculture, hunting and fishing

3861.727 3,768,856 3.683.299 3,844,623 78,017 2,03%

Commerce 4.553.043 4,375,240 4,400,378 4,468,613 63,265 1.42%

Construction 816.016 767,272 784.946 839,055 4,627 0.55%

Electricity, gas and water

69.673 61,989 74,222 73,479 26,788 36.46%

Financial establishments

193,248 197,837 220,663 188,935 27,295 14.45%

Manufacturing 2,454,628 2,327,590 2,407,673 2,444,890 78,090 3.19%

Mines and guarrier 156,676 177,002 199,281 227,632 15,646 6.87%

Community, social and personal services - Real estate activities

4,033,057 4,653,398 4,595,752 4,727,773 468,284 9.90%

Transport, storage and communications

1,150,635 1,132,537 1,205,079 1,255,014 64,408 5.13%

Total 17,288,703 17,461,721 17,571,292 18,070,014 831,047 4,60%

Source: National Department of Statistics (DANE); Continuous Survey of Homes; ENS Union Census*Approximate data for 2005 on exploitation of mines and quarries; provision of electricity, gas, and water; financial intermediation

82

4. Union members in public and private sectors. National total. Years 1�84, 2005

According to the available statistics, 100 between 1984 and 2005 the proportion of union members public sector – private sector was inverted: while in the first year of the period the private sector represented 63%, in 2005 the public sector amounted to 54.26%.

5. Unions and members per union type, 2005Table 10

Type of UnionNumber of

unions% Number of

members%

ENTERPRISE 1010 36,49% 214.010 25.75%

BUSINESS 1469 53,07% 427.499 51.44%

INDUSTRY 276 9,97% 187.189 22.52%

VARIOUS TRADES 13 0,47% 2.349 0.28%

Total 2.768 100% 831,047 100%

The general average of unionized workers per union is 303; that of enterprise-based unions is 219; that of trade–based unions, 291; and that of industry, 686. As can be seen, the numeric weight of the unions is insignificant, and the lack of concentration of the unions overwhelming: 2,768 unions for 831,000 members.

6. Unionized workers according to gender. National total. Years 1�84, 1��2, 2000 y 2005

Table 11National Total. Years 1984, 1992, 2000 y 2005 Percentage Participation

1984 1992 2000 2005

Men 71.5% 66.6% 64.0% 63.15%

Womens 28.5% 33.4% 36.0% 37.21%

Source: ENS Union Census

D..Proposals.for.overcoming.this.situation1. There is a deep-rooted anti-union culture in the Colom-

100.ENSunioncensus.

83

bian State and among the employers, who see in the au-tonomous organization of their workers a threat to their own autonomy in managing and administrating the en-terprises, and fear the effect that an eventual participa-tion of the workers in them might have on their profits. This is why the first great task to be undertaken is a great campaign, sustained through several years, to promote the legitimacy and the need for workers unions in Co-lombian society.

2. Introduce in the legislation direct and automatic union-ization of all workers in unions at the national level.

3. The restriction must be eliminated from Colombian leg-islation stipulating that only those who have a valid la-bor contract can establish unions, thereby opening the possibility of unionization to all persons who provide personal services, without regard to the type of contract they have.

(vi).ACCESS.TO.THE.ADMINISTRATION.OF.LABOR.JUSTICE.AND.FREEDOM.OF.ASSOCIATION

At the present time, labor justice does not constitute an effective mechanism to solve conflicts between workers and employers; the changes in the working world overwhelm the traditional schemes of administration of justice, and discon-tent and distrust grow among the workers when they have to demand their rights through the law.

A..Jurisdiction.and.CompetenceDue to the deep transformations that have taken place

in the labor market in the past two decades, the legal situa-tion of the provision of subordinate services has undergone a profound diversification. New forms of contracting in both the public and the private sectors have produced an explo-sion of legal transactions through which persons render their work and are paid for it. In view of this variety of forms of contracting, the State has not adopted a concordant dynamic; this has given rise to inefficiency and injustice.

Indeed, there are at least three different jurisdictions charged with the handling of matters related to the provi-sion of personal services. These three jurisdictions are: or-dinary labor, contentious-administrative [a special jurisdic-

84

tion where a governmental entity is involved], and ordinary civil.

This affects the workers negatively in several ways: in the first place, several forms of contracting typical of the ten-dency to third-party contracting and precarization are treat-ed as civil and commercial relations in which the worker is confronted with an environment that he does not know, that emphasizes his subordination, and thus a non- equalitarian situation with regard to whoever contracts his services.

Secondly, whoever has provided services to the State can initiate action to demand his/her rights before the ordinary jurisdiction as an official worker101 and nevertheless find, as the process progresses, that he/she is considered a public employee102 and that therefore his/her case is transferred to the contentious-administrative jurisdiction. In this case the worker can see his rights flouted, since the statute of limita-tions in this jurisdiction is only four months, counting from the time of severance. 103

B..Access.to.Labor.Justice

1. Unnecessary delays in labor-related proceduresThe first obstacle to an effective access to labor justice

is, without a doubt, the unjustified delays in the processing of cases in this jurisdiction. 104

101. Employment by the State, which resembles contracting with the pri-vate sector.

102. Employment of workers at the service of the State with a special system, different from the private sector.

103. See, Marcel Silva Romero. Breves apuntes sobre la inconveniencia de la creación de los juzgados de seguridad social, separándolos de los juzgados del trabajo. Bogota: mimeo, Page 6.

104. In the study “Tiempos procesales y opinión sobre el servicio de la justicia”, carried out by Colombian National University in 1998 by request of the High Council of the Judicature, aimed at finding out the average time that a judicial chamber takes to solve a case, it was revealed that labor-related cases that ended with first-instance sen-tence, the length of time varies according to region: Atlántica 1112 days, Pacífica 295 days, Cafetera 337 days, Central 695 days, Orien-tal 650 days and Suroriental 605 days. Also, it revealed that the aver-age period of time between the filing of the claim and the second-instance ruling was 1017 days, with periods that oscillate between a minimum of 74 days and a maximum of 4005 days.

85

In spite of the changes that Law 712 of 2000 tried to bring, the situation remains a source of concern since, according to a study by the engineering company OM Ingeniería y Ambi-ente Ltda. 105 for the year 2005, the longest periods registered are those involving labor processes, with an average length of more than 700 days, followed by civil cases with an aver-age length greater than 600 days.

One of the main causes of these excessive delays in la-bor-related processes is that judicial practice has turned the hearings106 into long dictation sessions that delay the admin-istration of justice and obstruct compliance with the param-eters of celerity and efficacy established in the international instruments and jurisprudence. 107

In view of such slow processes, it is becoming more and more common to find conciliations in which the employers award the workers derisory sums and take advantage of the immediate needs of those who for years were at their ser-vice.

These unjustified delays in labor justice made it possible to promote the “Project for the Reform of the Labor and So-cial Security Procedural Code in order to make effective the orality of the processes;” and, with the support of various sectors – magistrates, lawyers, and political groups - that initiative, which grew out of the Commission on Coordina-tion of Labor and Wage Policy, today has become law. 108 However, for its implementation a political commitment is necessary on the part of the government, which must make available the resources to make it a reality.

105. Cited in the arguments for the first debate on the bill No. 044 of 2006 Chamber regarding reforms of the Procedural Labor Code and Social Security.

106.ForeseeninDecree2350of1944,throughwhichwasissuedthePro-ceduralLaborCode,inwhichanoralprocedureisestablished;how-ever,thisprocedurewasdistortedinpractice.

107.Art.46.2.coftheAmericanConventiononHumanRightsandsen-tencesoftheInter-AmericanHumanRightsCourt”:MasacredelaRochela,páfs.155,156y158,CaseGómezPalomino,p.80,CaseofthesistersSerranoCruz,p.83,CaseLaCantuta,p.157.

108.Law1149of2007

86

2. Option to choose [Fuero electivo]10�

At present, the law allows for a relative discretionary power on the part of the worker, through which he/she can choose to file an action at his home judicial chambers or wherever he or she provided his/her services. This mecha-nism makes it easier to structure a full defense, without interference from employers or third parties.

In spite of these advantages, Congress approved a statu-tory law, now under judicial review before the Constitutional Court, eliminating the protection of the option to choose, or fuero electivo]110

C..Disregard.of.international.standards.on.the.part.of.the.High.Courts

1. Supreme Court of JusticeIn this Court predominates clearly a pro-management

position that pervades the greater part of the judicial system. Disregard for the compulsory nature of the ILO Conventions in the administration of justice is a heavy blow against the rights of the workers111 and goes against Article 93 of the Constitution, which deals with the fundamental labor con-ventions that cannot be suspended during states of excep-tion and that, therefore, prevail in the internal legal order; and against Article 53 of the same Constitution, which states that the Conventions ratified by Colombia are part of internal legislation.

The Court has insisted repeatedly that the ILO Conven-tions are “simple norms of international conduct that are not binding for the States” and that therefore no exigible obliga-

109. Fuero electivo is a procedural mechanism through which it is the worker’s option to choose among various possibilities with respect to the judicial chamber where he wants to initiate action to demand his rights.

110.DraftstatutorylawNº.0232006regardingconditionsofefficacyandcelerityintheadministrationofjustice.

111.SentenceofOctober8,1999(No.11731),:“…TheCourtconsiders…thatjudgesandtribunalsoftheRepubliccannotbesubstitutedbyanyadministrativeor investigativeorganorbyany supranationalorga-nization lacking thecapacity to imposeobligationsonanyof theirmembersinthelightoftheinternationalnorms.”

87

tions ensue from the ratification of such instruments. This position undermines the binding force of the Conventions and turns them into dead letter.

On the other hand, this high tribunal denies all legal significance to the recommendations of the control organs, among other reasons because of a regrettable confusion be-tween the recommendations adopted by the Conference and those issued by these control organs. 112

In what concerns public employees, in spite of what Con-vention 151 determines, the Court considers that the ban on collective bargaining by unionized public employees113 re-mains in effect. The only aspect inwhich the Court accepts that Convention 151 is applicable is what refers to union guarantees. 114

A recent jurisprudence of this high tribunal115 revised its traditional position of stating an opinion in the appeal for ho-mologation against a binding judgment in arbitration resolv-ing a collective conflict only in terms of declaring its con-stitutionality or its nullity; instead, it admits the possibility of doing so conditionally, introducing elements that change the meaning, scope or entity of a clause and substituting the main meaning of the will of the arbitrator.

It is not enough that the tribunal rules in equity; the Court is the organ that in the end decides how equitable the decision is and can even disregard it.

112. Ibíd. “No es la “invitación” del Comité ni la “recomendación” del Consejo de la OIT una sentencia ni una norma de derecho”. “Neither an „invitation of the Committee or a „recommendation of the ILO Council is a sentence or a legal norm.” See: Marcel Silva Romero, Proyección de un siglo de Derecho Laboral Colectivo en Colombia, Faculty of Law, Political and Social Sciences, Universidad Nacional de Colombia, Bogotá, 2005.

113.Ibíd.“Theconditionsofserviceofpublicemployeescannotbemodi-fiedonlyonthebasisofagreementsbetweenemployerandemployee,evenwhenitisfavorabletothelatter.Thisiswhytheunionsofpublicemployeescannotenterintocollectivebargaining.”ThisprohibitionappearsinArticle416oftheLaborCode.

114.TheSupremeCourtfindsjustifiedtherestrictionintherighttocollec-tivebargainingoftheunionsofpublicemployees,pointingoutthatthisrestrictiondoesnotgoagainstConventions151and154oftheILO.SentenceSeptember13,2005.

115.SentenceofMay15,2007,(No.31381)

88

2. State CouncilThe highest tribunal of the Contentious-Administrative

[adversarial legal proceedings where the State is a party] shares the opinion of the Supreme Court with regard to the rights of public employees. According to the Civil Service Consultation Chamber of the State Council, Convention 151 “does not foresee the right of full collective bargaining for all civil servants, but establishes that the States must adopt measures suitable to the conditions of the nation that encour-age and promote negotiations between the authorities and the organizations of public service employees, which is compat-ible with the constitutional order (…)”116

3. Constitutional CourtThe Constitutional Court has developed the theory of the

Constitutionality Block as the way to incorporate interna-tional human rights instruments with equal rank as the con-stitutional norm and, in that way, to have them prevail in the internal legal order (Art. 93).

Specifically with regard to compliance with the Conven-tions, the tribunal fails to adopt a coherent position. In some of its rulings, 117 it has backed compliance with the treaties, granting full legitimacy to their contents within the Colom-bian domestic sphere; however, in other rulings118 this valid-ity has been reassessed, making way for restrictive interpre-tations of the same contents and turning its jurisprudence into an ambiguous mechanism for the defense of the interna-tional ILO standards.119

D..Proposals.for.overcoming.this.situation1. Promote training campaigns for judges and magistrates

on the binding nature of the Conventions of the Interna-

116 . Consultation and Civil Service Chamber.. Bogotá, D.C. July 10, 2001. No. 1355.

117.SentencesC-013of1993,T-568of1999,C–567andC-797of2000.118.SentencesC-468of1997,C-201of2002andC-551of2003.119.Foradetailedanalysisofthesentencesmentionedandtheirrelation

withILOinternationalstandards,see:MarcelSilvaRomero.“El zig-zagueante camino de la noción de bloque de constitucionalidad en materia laboral”. DocumentosdelInstitutoColombianodeDerecho Procesal.

8�

tional Labor Organization and of the recommendations of the control organs.

2. Urge the national government to use all economic and technical resources available to make effective orality in labor processes.

3. Exhort the President of the Republic to abstain from sanctioning the statutory law of the Administration of Justice in what refers to the reform of the protective fuero elective.

4. Make recommendations to the country’s High Courts so they grant full validity to the ILO Conventions and to the recommendations of their control organs in their legal decisions, taking into account that by being party to the ILO and its Conventions, the State acquires obligations that it must meet, otherwise compromising its interna-tional responsibility.

5. Include in the agenda of the Permanent Commission on Labor and Wage Policies the discussion of a bill promot-ing unity in the legal processes concerning labor rela-tions and third-party contracting, in order to speed up the proceedings and facilitate access to justice.

�1

CHAPTER.III..PROMOTION.OF.DECENT.WORK

A..The.ILO.normative.framework“Opportunities for men and women to find decent and

productive work in conditions of freedom, equity, security, and human dignity.” 120 The ILO has insisted that “the gen-eration of decent work constitutes the best way to overcome poverty and strengthen democratic governability.” 121.

The concept of Decent Work was first proponed by ILO Director Juan Somavía at the 87th assembly of the Interna-tional Labor Conference in 1999, as a synthesis of four stra-tegic objectives that, in turn, develop the values on which is founded the ILO.


1. Economic growth without employment generationThe first Development Plan of the Uribe government put

forward as goal the creation of 2,295,223 new jobs in four years. To reach that goal, trust was placed in the recovery of the economy, which in theory would be responsible for the creation of 1,809,159 new places of work; the rest, that is, 486.064 jobs, would be the consequence of the labor reform (Law 789 of 2002) that was approved in Congress.

In 2006, with a growth rate of 6.8% of gross national product, the employment rate went down by 4 points, un-employment increased by more than one point, the rate of

120. Juan Somavía (Director of the ILO). Speech at the 87th meeting of the International Labor Conference, 1999.

121. Conclusions of the Regional Conference on Employment of MER-COSUR (Buenos Aires, April 2004), of the Andean Conference on Employment (Lima, November 2004), and of the Sub- regional Tri-partite Forum for Employment, Tegucigalpa, Honduras, June, 2005).

�2

underemployment by 4.5 points, and the rate of inactivity – which conceals thousands of unemployed persons who left the labor market after years of being rejected – went up by four points too. And the most serious: in one year the number of occupied workers went down by 1.136.965 persons. After four years of application of this labor reform, the objectives have not been met but have, on the contrary, generated great-er utilities for the employers.

As the National Department of Statistics (DANE) re-ports for the first semester of 2007 indicate, labor indicators continue to deteriorate, as the rate of employment went down even more and unemployment continued to rise.

The numbers also show the difference in the rates of employment of men and women, where the women’s rate of employment is lower and female unemployment has historically been higher than male unemployment by 5 to 7 points – leaving aside, that is, without counting or es-timating in money terms the unpaid work of women as caretakers and in domestic tasks.

2. Foreign investment and working conditionsIn 2006, foreign direct investment (FDI) in Colombia

reached US $6.295 million, a drop in comparison with 2005, when it reached the historic high of US $10,255 million, but greater than FDI figures for 2003 and 2004, when investment reached US $1,758 million and US $3,084 million respec-tively. 122

All these investments can be identified as “investment in search of markets,” characterized by the Economic Com-mission for Latin America and the Caribbean (ECLAC) as investments geared toward capturing a greater share of local and regional markets.123 Foreign direct investment in 2006 focused more on the “search for raw materials,” concentrat-ing in renewable (such as timber and rubber) and non-renew-able (such as minerals and oil) resources.

122. Proexport Colombia. Report on Direct Foreign Investment 2006, Bo-gota, 2007, p.2.

123. ECLAC/CEPAL. La inversión extranjera en América Latina y el Ca-ribe 2005, Santiago de Chile, 2006, pp. 6-7.

�3

According to data of the Bank of the Republic, the mines and quarries sector obtained the highest level of investment in 2006, US $2.010 million or 31,9% of total FDI in the country for that year, maintaining the tendency toward high invest-ment begun in 2004 in that sector. The sector that received the second highest FDI in 2006 was the oil sector, with in-vestments amounting to US $1.770 million, for a 28,1% share of the total FDI for the year. 124

This investment is characterized by its high environmen-tal impact, which entails problems such as deforestation, con-tamination of the water and the atmosphere, and, at the same time, low job creation. According to the National Department of Statistics (DANE), the sector of mines,quarries, and oil represents only 1,13% of employment at the national level. 125

The impact of FDI in terms of employment generation in recent years has not been very positive for the workers. According to the Database on Multinational Corporations of the ENS, which contains data on the operations in Colombia of 679 multinational enterprises, these companies employ di-rectly approximately 300,000 workers. Among the workers in the multinational corporations registered in this database, 22,573 are unionized, or 7,6% of the labor force – lower than in other countries in Latin America that are important recep-tors of FDI, such as Brazil, were 23,58% of the economically active population is unionized.126

Several factors explain the low levels of employment and unionization among the Colombian affiliates of multination-al corporations: the high concentration of extraction-based industries that use low levels of labor; the preeminence of FDI in the manufacturing and service sectors through the acquisition of national enterprises instead of the creation of new units of production and provision of services by the mul-tinational corporations; and the generalized use of workers

124. Proexport Colombia. Reporte de Inversión Extranjera Directa 2006, P. 3.125. Margarita Ramírez Madrid. “Sectores económicos: Estructura

económica y laboral”. In: Observatorio de los Derechos del Trabajo, número 8, agosto. Medellín: 2006. p. 70.

126. CUT Brazil, Congress of the CUT, http://www.unesco.org.uy/shs/docspdf/correosindical/CSLAtematico8.pdf.

�4

hired through third- party contracting, hindered by law and in practice from joining unions.

In the case of the Bavaria brewery (today an affiliate of SAB Miller), before it was purchased the company carried out a campaign of extermination against Sinaltrabavaria, the union that represented the majority of workers at that moment, through the imposition of a collective pact, the closing of seven factories, the cancellation of the union registers of its sectionals, and the collective dismissal of the totality of unionized workers.

Many of these workers were invited to work again in the corporation after being fired, under the condition that they would be hired through Associative Work Cooperatives, a form of contracting that does not permit the exercise of the right to association.

InthemassconsumptionchainstoresSupertiendas and Droguerías Olímpica, whose owners are negotiating their sale to a multinational corporation, as in the other cases mentioned above, there is brutal pressure to eliminate the union and deny the workers the right to negotiation.

Other examples of Colombian affiliates of multinational corporations that have systematically eliminated the unions that represented their employees while promoting labor flex-ibilization include Avianca (air transport), Telecom (com-munications), Dole Fresh Flowers, and Banco Santander.

3. Labor reform and the precarization of employmentLaw 789 of 2002 had as objective “to issue norms to sup-

port employment and broaden social protection,” and to that end key aspects of workers compensation were modified: the payment of 35% for night work between 6:00 and 10:00 p.m. was eliminated; payment for work on Sundays and holidays was cut by 25%; and compensation for firing without just cause was cut by half.

Multiple studies have been carried out regarding the im-pact of the labor reform. 127 All of them, in different ways,

127. There are four studies that have been published between 2004 and 2005: Alejandro Gaviria. “Ley 789 de 2002: ¿Funcionó o No?”, CEDE: 2004; Jairo Núñez. “Éxitos y fracasos de la Reforma Lab-

�5

reveal that the proposed goals of the labor reform were not met.

Not only did the labor reform not create jobs but, by us-ing labor resources as means for financing the measures cre-ated by this law, it generated a greater inequity in income distribution, as reflected in the workers loss of income, 128 as for example in the private security sector..129

Law 789, in its Article 45, included the creation of a com-mission for monitoring and verification of the job genera-tion policies foreseen in the reform, among whose functions is that of “presenting a full evaluation of their results” that will enable to government to “present a bill before Congress modifying or revoking provisions that have not achieved practical effects in terms of employment generation.”

Up to now, that commission has not even been desig-nated; therefore, after three years, the official balance on the impact of the recovery of the economy and labor reform re-mains unknown.

4. Fraud in labor relations through the pseudo-Associa-tive Work Cooperatives (cooperativas de trabajo asociado, CTA)

Regarding cooperatives, in 2002 the ILO adopted rec-ommendation 193 in which it establishes that national poli-cies must:

oral”. Ministerio de la Protecci n Social: (noviembre) 2005; Hugo L pez, Remberto Rhenals y Elkin Casta o. “Impacto de la Reforma laboral sobre la Generación y Calidad del Empleo”. Cuadernos de Protección social, Cuaderno No.1, noviembre. Ministerio de la Pro-tección Social: 2005; Ver nica Amarante, Rodrigo Arim y Mauricio Santamaría. “Los efectos de la reforma laboral de 2002 en el mer-cado laboral colombiano”. Revista Perfil de Coyuntura Econ mica, December 2005.

128. Evaluación de la reforma laboral (ley 789 de 2002), Universidad Nacional de Colombia, Facultad de Ciencias Económicas. Centro de Investigaciones para el Desarrollo –CID-, March 2007, p. 75.

129. In this sector the situation is critical, according to the National Uni-versity study. “Adding up the results of all the measures that affected the private guards, that is, lengthening of the working day and reduc-tion of extra pay for Sundays and holidays worked, we see that every guard lost, on average, $1,151,000 in 2005, an amount that delays the workers access to levels of five years ago.”

�6

“a) Promote the application of the fundamental labor norms of the ILO and of the ILO declaration relative to the fun-damental principles and rights in the world of work to all workers of cooperatives, without distinction;

b) Make sure that cooperatives are not created or used to evade labor legislation or to establish covert labor rela-tions, and fight against pseudo-cooperatives that violate the rights of the workers, watching over the implementa-tion of labor legislation in all enterprises.”

4.1 Expansion of the mechanism of the Associative Work Cooperatives (cooperativas de trabajo asociado, CTA)

Our rejection is not against the cooperative movement in-discriminately. We have repeatedly denounced that, straying from the principles of the cooperative movement and from the philosophy espoused by the Solidary Economy,130 at the present time the proliferation of the so- called Associative Work Cooperatives131 corresponds, to a large extent, to man-agerial strategies to evade the labor-related obligations that are part of work contracts. 132

130. “But these were CTAs that were born crooked, orphans of the spirit of the

law that created them, according to which their primary objective is to make it possible for their associates, through joining their resources and their labor force, to generate their own jobs and at the same time be proprietors of their own enterprise and manage them autono-mously. This is why they cannot be sub-contracted like hand labor for other economic agents, it is not in accordance with their legal nature. But that, exactly, is what the CTAs are doing all the time in the Port of Buenaventura: to subcontract themselves. On their letter-heads and signs in their offices (when they have them), they advertise as such, but in practice they have served only as simple job interme-diaries…” Ricardo Aricapa. Las CTA en el Puerto de Buenaventura: Caos y degradación laboral. In: Ensayos Laborales, número 59. Es-cuela Nacional Sindical (ENS).

131. Law 79 of 1988 defines the Associative Work Cooperatives (CTA) as “… those that link up the work of their associates for the produc-tion of goods, the execution of works, and the provision of services.” In this same sense, Decree 468 of 1991, which regulates that law, reads: “(…) The associative work cooperatives are non-profit asso-ciative enterprises that link up the personal work of their associates and their financial contributions for the production of goods, the ex-ecution of works, and the provision of services in a self-managing way.“

132 “… In the Valle del Cauca department is concentrated 97% of the

�7

It is, therefore, not a matter of autonomous initiatives constituted as an expression of self management, but of a legal instrument that the employers, including the State, are using to exploit low-cost labor without assuming their re-sponsibility at the time of hiring.

Table 12Growth of Associative Work Cooperatives (CTA) 2000- 2006133

YEAR COOPERATIVES ASSOCIATES

2000 732 55.496

2001 885 72.234

2002 1.331 116.684

2003 1.838 193.214

2004 1.968 283.091

2005 2.980 378.933

2006 3.296 452.000

Colombian sugar agroindustry. There, 13 sugar mills occupy a culti-vated area of 200,000 hectares of sugar cane and produce 2,7 million tons of sugar per year, which in 2004 produced utilities of $174,000 million pesos and generated 36,000 direct jobs – making sugar pro-duction the productive sector with the greatest employment impact in the region. Nonetheless, these are figures that hide the situation of labor inequity endured by the “corteros,” as are called those who do the work of cutting cane in the fields. The Associative Work Coop-eratives to which 90% of them belong have much to do with that situ-ation of inequity…” Ricardo Aricapa. Las Cooperativas de Trabajo Asociado del Sector azucarero: ¿Flexibilización o salvajización lab-oral? Medellín: Escuela Nacional Sindical. Page 2. 132 “… In the Valle del Cauca department is concentrated 97% of the Colombian sugar agroindustry. There, 13 sugar mills occupy a cultivated area of 200,000 hectares of sugar cane and produce 2,7 million tons of sugar per year, which in 2004 produced utilities of $174,000 million pesos and generated 36,000 direct jobs – making sugar production the pro-ductive sector with the greatest employment impact in the region. Nonetheless, these are figures that hide the situation of labor ineq-uity endured by the “corteros,” as are called those who do the work of cutting cane in the fields. The Associative Work Cooperatives to which 90% of them belong have much to do with that situation of in-equity…” Ricardo Aricapa. Las Cooperativas de Trabajo Asociado del Sector azucarero: ¿Flexibilización o salvajización laboral? Me-dellín: Escuela Nacional Sindical. Page 2.

133. Fernando Urrea Giraldo. “La rápida expansión de las Cooperativas de Trabajo Asociado en Colombia. Principales tendencias y su pa-pel en algunos sectores económicos”. In: Controversia, Number 188, June. Pages 117-169. Medellín: CINEP, 2007. Study carried out for

�8

4.2 The legislator opens the way to third party contracting of labor through the Work Cooperatives

With the issuing of Law 78 of 1988, the way was opened for precarization, by enshrining in the norm that labor law will not be applied to associated workers.134 This means that those who provide services through cooperatives are not considered workers but have the status of associates and are therefore deprived of all the guarantees135 that historically have been granted to the workers. In this case, exceptionally, it is interpreted that the work they perform is their principal contribution to the cooperative to which they belong. 136

the National Union School (Escuela Nacional Sindical ENS) in 2006. These figures do not reveal the total number of Associative Work Cooperatives (CTA) that exist in the country, as there is an important subregistration. Some leaders of the cooperative sector state that in Colombia at present there are perhaps more than 8,000 cooperatives with more than one million associated workers.

134. Article 59 of Law 78 of 1988. In the Associative Work Cooperatives in which those who provide the capital are at the same time the work-ers and the managers of the enterprise, the system that regulates la-bor, pensions, social security, and compensation shall be established in the statutes and regulations, as they originate in the Cooperative Agreement and therefore shall not be under the labor legislation ap-plicable to dependent workers. The differences that may arise will be subject of an arbitration procedure foreseen in Title XXXIII of the Civil Procedure Code, or ordinary labor justice. In both cases, statutory norms must be taken into consideration as sources of law.

135. “The compensation, to use cooperative terms, is a far cry from the salaries earned by cane cutters working for the sugar mills, begin-ning with the fact that the CTAs do not work on holidays that fall on Monday, or during Easter week, or December 25th or January 1st and, therefore, on those days the cutters receive no pay. The sal-ary differences are great: while in 2005 the cutters employed by the mills received $5.682 pesos per ton, those associated in the CTAs received $3.900 pesos, or almost a 2,000 pesos difference for the same work…” Ricardo Aricapa. Las Cooperativas de Trabajo Aso-ciado del Sector azucarero: ¿Flexibilización o salvajización laboral? Medellín: Escuela Nacional Sindical.

136. Article 59, Law 79 of 1988. In the Associative Work Cooperatives in which those who provide the capital are at the same time the workers and the managers of the enterprise, the system that regulates labor, pensions, social security, and compensation shall be established in the statutes and regulations, as they originate in the Cooperative Agreement and therefore shall not be under the labor legislation ap-plicable to dependent workers.

��

In principle, it is established that membership in such cooperative organizations is free and voluntary137, and not the result of acts of harassment to which former workers are subjected to be able to keep their income, although outside of the contractual relation. Likewise, it is considered of fun-damental importance that the decision making inside the co-operative is the result of democratic deliberative processes, and yet the “supposed associates” generally don t even know what it means to have that status, do not carry out periodic assemblies, and have no influence in the management and administration of the cooperative.

In order to confirm that the use of cooperatives has reached unexpected levels of exploitation, it is enough to ob-serve the treatment given to packers in large supermarkets, who, because they offer their services through cooperatives, have no right to a decent salary and depend on the tips that they get from the clients in exchange for their work.

The organization of cooperatives not only serves to lower labor costs but is also an effective way to impede the creation of unions inside the enterprises, since, as the current legisla-tion stands on this matter, those who are associates and not subordinate138 workers have no right to unionize, or to collec-tive bargaining – and even less to strike.

4.3. The government has no clear commitment regarding the control of the cooperatives

In spite of many efforts so there is oversight and sanction against those Associative Work Cooperatives (CTA) that do

137. Law 79 of 1988, Article 5: “Every cooperative shall meet the follow-ing criteria: 1. That both joining and withdrawal by the associates shall be voluntary…”

138. Ruling C 211 de 2000 (Constitutional Review Articles 57,58 and 59 de la ley 79 de 1988) “The Associative Work Cooperatives differ from the others because the associates are simultaneously propri-etors and workers of the entity; that is, associate and worker are iden-tical. This being so, it is not possible to speak of employers on the one hand, and workers on the other, as in subordinate or dependent labor. This is the reason why the norms of the Code of Labor are not applicable to associates-workers of such cooperatives, a system of rules that regulates only dependent labor, that is, work that is carried out in a relation of dependence or subordination from an employer and for which the worker receives a retribution called salary.

100

not comply with all the requirements and serve as intermedi-aries in labor relations, the State has no political will to do it; an example of this is that at the end of 2004, in the midst of negotiations on the free-trade agreement (FTA), decree 2879 was issued with the purpose of forbidding the Associative Work Cooperatives to provide services at events specifically foreseen in Article 77 of Law 50 of 1990 for temporary ser-vice companies.

This provision was in force no more than 20 days and it was revoked by a decree by the government139 again which only makes reference to social payments.

Again, as the result of pressure from the United States government, a few months ago Decrees 4369 and 4588 were issued: the first one with the purpose of regulating the tempo-rary service companies; and the second, to deal with the subject of the Associative Work Cooperatives. But both make reference to the prohibition to the Associative Work Cooperatives from becoming temporary employment agencies.

It must be kept in mind that Law 50, in its articles 71 and 72, foresaw that “in order that a company can send workers on a mission it must have as its only and exclusive social objective to provide the services of temporary workers and have the authorization of the Ministry of Social Protection to carry it out.” This means clearly that even without the above-mentioned decree, the intermediation of the cooperatives was already illegal because that is not their social objective and, besides, they have no authorization through administra-tive proceedings to carry it out.

Even without Decree 4588, it was already foreseen in Decree 24 of 1998 that the Ministry of Social Protection had the faculty to sanction persons who hired temporary services with unauthorized companies to carry out this activity, im-posing fines of up to 100 current monthly basic salaries.

These provisions, found in the legal order for some time, make it clear that the mere enactment of norms to prevent labor intermediation the cooperatives is not enough if the government is not committed to pursue and sanction them.

139. Decree 2996 of 2004.

101

So it seems pertinent to ask ourselves if there will be changes as a result of the widely publicized Decree 4588 of 2006, which in many aspects does not represent an innova-tion in normative terms, and simply clears up the subject of sanctions, explaining the process through which such sanc-tions are imposed by the Ministry of Protection in confor-mity with laws that were already in force.

We could say in conclusion that the above-mentioned de-cree leaves the door open for further fraudulent use of the cooperatives and is therefore not the most effective way to dismantle this form of flouting labor law, since the paragraph of Article 5 of the decree establishes the following: “The As-sociative Work Cooperatives whose activity is the provision of services to the health, transportation, private security, and education sectors must be specialized in their respective branch of activity…,” providing the possibility to continue operating with labor intermediation.

The State, in its role as employer, has benefited from the implementation of the CTA. One need only look at the model for restructuring the health sector, which uses the CTA in a generalized way; and recently, Decree 1466 of 2007, which promotes and legalizes contracting with Associative Work Cooperatives (CTA).

It is not possible to go on issuing decrees that regulate only isolated aspects of the cooperatives but that maintain intact the problem of third-party contracting. A bill is ur-gently needed, fruit of social dialogue, that establishes a le-gal framework for the functioning of the cooperatives on the basis of Recommendation 193 of the ILO, which establishes parameters on this matter that the States must observe.

5. Deficiencies of the system of Labor InspectionThe high levels of avoidance and evasion among a good

part of the employers and the State institutions with respect to their obligation to affiliate the workers to social security, and to respect labor rights generally, is reinforced by the very policies of the State with regard to the labor inspection activities that it must carry out.

Although Colombia ratified Conventions 81 of 1947 and 129 of 1969 regarding labor inspection, these have not had

102

the required effects, in the first place because of the elimina-tion of the labor Ministry and the resulting weakening of its functions within the Ministry of Social Protection; second, the system of labor inspection is completely precarious in the face of the continuous and reiterated violations of labor rights. This can be seen, for example, in the long waits that the workers must endure for their complaints to be processed, which can take two years with no solution; and, contrary to what Convention 81 stipulates, the number of Labor Inspec-tors is completely meager with respect to the grave problem of illegality and evasion.

As the Ministry of Social Protection itself has informed, “in order to carry out the function of labor inspection, over-sight and control (in 1,094 municipalities and four districts), the Ministry has two levels of administration: central and territorial, made up of 32 territorial offices in the capital cit-ies of departments, two special offices, and 112 seats of labor inspection with jurisdiction over the totality of the munici-palities, to which 273 inspectors have been assigned to op-erate a system of labor-related prevention, inspection, over-sight and control.”

When the economically active population is considered, 17,667,878, to each inspector would correspond oversight and control over 61,134 workers. Not only is the number of inspectors insufficient, but also the multiplicity of functions continually affects the possibility of carrying out inspections and hampers the main other protection functions.

In the third place, the conduct of the Ministry is clearly slow, docile and not very effective in what concerns labor inspection, particularly in processing the complaints of the workers about companies that are strong, agile, and effective at blocking the rise and functioning of unions at the moment of exercising union registry. This is why it has become com-mon among the workers to call the Ministry of Social Protec-tion the Ministry of Employer Protection.

On the other hand, the State excluded from Convention 81 the application of inspections relative to commerce, pre-cisely one of the activities that present the greatest number of problems regarding the application of labor rights.

With regard to Convention 129 on (agricultural) labor

103

inspection, the omission on the part of the government is regretful, since in spite of the fact that Colombia acquired the obligation to have labor inspectors specialized in agri-culture, the reality is very different on this point. According to DANE statistics, in Colombia there is an economically active population in rural areas of 4 675,000.140

C..The.present.situation

1. Characteristics of employment in ColombiaTable 13

Distribution of the working population according to occupational category

IV Quarter 2002 2003 2004 2005 2006Particip. Var.

% %

Workingpopulation

17.065.785 18.092.892 18.004.879 18.804.843 17.667.878 100 -6,0

Privateemployee

6.036.566 6.263.519 6.122.911 6.807.667 6.721.395 38.04 -1,3

Laborer or Farm worker

740.412 847.961 842.895 959.935 1.191.762 6.74 24,2

Governmentemployee

1.050.297 1.106.540 1.066.685 1.075.352 1.034.610 5.85 -3,8

Domesticemployee

837.735 910.875 822.640 823.862 688.468 3.89 -16,4

Independentworker

6.561.846 6.927.571 7.188.410 7.133.301 6.419.483 36.33 -10,0

Employer 861.892 851.737 957.470 1.006.020 802.934 4.54 -20,2

Family workerwithout salary

977.037 1.184.689 1.003.868 998.706 809.226 4.58 -19,0

Source: National Department of Statistics (DANE)

Table 14Working population according to economic sectors

IV Quarter 2002 2003 2004 2005 2006 Var.

Working population 17.065.785 18.092.892 18.004.879 18.804.843 17.667.878 -6,05

Agriculture 3.534.449 3.861.727 3.914.981 3.830.033 3.405.285 -11,09

Mines 107.464 156.676 212.741 175.833 264.600 50,48

Industry 2.371.884 2.454.628 2.512.420 2.592.715 2.264.626 -12,65

Elect., Gas, and water 82.094 69.673 69.671 73.086 79.285 8,48

Construction 730.269 816.016 836.386 879.901 849.614 -3,44

140.DANESerietrimestremóviloct-dic2006.

104

Commerce 4.291.445 4.553.043 4.483.027 4.876.251 4.596.536 -5,74

Services 5.929.237 6.175.290 5.971.532 6.376.061 6.193.855 -2,86

No information 18.936 5.840 4.120 962 14.077

Source: National Department of Statistics (DANE)

2. Characteristics of social protection

2.1 Social protection in figures

Table 15Indicators of social protection

2002 2003 2004 2005 2006 %

Working population (1) 17.065.785 18.092.892 18.004.879 18.804.843 17.667.878 100

Members,severance funds (2)

2.678.899 2.903.379 2.996.027 3.319.509 3.710.477 21.0

Members familycompensation funds (3)

3.351.691 3.546.528 3.842.045 4.224.001 4.440.000 25.13

Contributingmembers,contributive healthinsurance system (4)

6.096.926 5.833.693 6.880.392 7.193.602 7.193.889 40.71

Members,professional risksinsurance system (5)

4.164.975 4.602.468 4.849.754 5.104.050 5.637.676 31.9

Contributingmembers, pensionfunds (6)

4.961.223 4.907.243 4.907.243 4.877.515 4.630.469 26.2

Pensioned workers* (7) 1.234.662 1.220.138 1.299.416

Unionized membersof the population (8)

875.785 844.648 831,047 847.253 4.79

Collective Agreements (9)

700 284 620 360 355

Coverage Collective conventions (10)

176.774 72.244 134.244 99.362 60.462 0.90

* Includes those pensioned for old age and disability, and persons who receive survivors pension. Sources: 1. National Department of Statistics (DANE), Balance of labor market per quarter. 2, Superintendencia Financiera., Statistics on Funds Administered. www.superfinanciera.gov.co. 3. ASOCAJAS. www.asocajas.org.co. 4, 5, 6, 7, 9, 10: Ministry of Social Protection, Reports to Congress. 8. ENS Union Census.

2.2 Health in the workplaceThe General System of Professional Risks (SGRP) cov-

ers only 5,637,676 workers from a working population (WP) of 17,667,878. That is, for every 100 persons who work, only 32 are affiliates of the professional risks system.

105

According to official reports by the Ministry, the cases and rates of death in the workplace have increased after Law 100 of 1993 came into force 141 and after the creation of the General System of Professional Risks. The annual average of deaths at the workplace in the period 1994- 2006 is 868 (a rate of 15.88 x 100,000); that is, almost three workers per day. Furthermore, there are 688,536142 work-related accidents (2006); that is, 1,892 accidents per day, or 1,31 a minute. As to work-related diseases, 2,935 persons become ill.

About these figures, even the government recognizes that they are lower than in reality; this is due to the low cov-erage and the resulting lack of register of events that happen to workers who are not members of the system.

Tabla 16Main indicators of health and work in Colombia

1994 1995 2002 2003 2004 2005 2006

Deaths 357 370 697 865 860 852 895

Rate x 100,000 9.85 10.14 16.73 18.80 17.73 16.70 15.87

Accidents (qualified + presumed)

559.248 540.493 590.551 688.536

Qualified work-related illnesses

1.215 1.042 920 1.121 1.105 1.909 2.935

Affiliates 3.622.402 3.650.0 61 4.164.9 75 4.602.4 68 4.849.7 54 5.104.0 50 5.637.67 6

Source: Ministry of Social Protection. www.minproteccionsocial.gov.co

2.3. Old age with no direction or protectionIsolated from the labor market, hindered from living an

active old age, senior adults turn into invisible actors with no social or economic rights, and without the cultural recogni-tion that senior citizens enjoy in other societies.

The deterioration of pensions and the expectation of their definitive loss in the future are expressions of a regression in the recognition of social rights prohibited by the Interna-tional Covenant on Economic, Social, and Cultural Rights. Legislative Act 01 of 2005, which amended the Colombian

141. Beginning with this law, the responsibility for occupational health and professional risks passed from the employer to the General Sys-tem of Professional Risks (SGRP).

142.MinistryofSocialProtection,ProfessionalRisksFund:www.min-proteccionsocial.gov.co.

106

Constitution, prohibited, against what ILO Convention 98 established, the inclusion of pension-related topics as object of collective negotiations.

Old people with no social security turn into marginal in-dividuals, with no public policies to protect them not only of the sociopolitical violence that assails Colombia but also from the family violence that has turned them into one of the most vulnerable sectors, rivaled only by children. 143

According to data of the National Department of Statis-tics (DANE), of 17,667,878 active workers, only 4,630,469 are members of a pension fund, which shows the low expec-tations of the majority of the population currently employed of ever obtaining a pension for a decent old age. In this con-text, it is important to note the greater life expectancy of men in comparison to women, which is accompanied by a greater deterioration in the state of health.

3. Gender equity in the workplace

3.1 Characteristics of gender equity in the workplaceThe lower remuneration of women with respect to that of

men is the consequence of a triple disparity: women do less qualified work, are more present in the informal sector than are men, and are subject to specific discrimination toward women workers.

For the last quarter of 2006: the total rate of occupation among men nationwide was 64,9%, while that of women was 37,4%. The total national rate of unemployment was 14,9% for women and 8,9% for men. By branches of activity, nationwide the branch that concentrated the greatest num-ber of men working was agriculture, cattle raising, hunting and fishing, with 28,1%. The branch that includes commu-nal, social, and personal services remains the main source

143. For a more detailed treatment of this problem, see: Confederation of Pensioners of Colombia: “Análisis, Posición y Desarrollo de la Situ-ación actual del Pensionado Colombiano y el Adulto Mayor en el Enfoque de la Seguridad Social,” mimeo, Bogotá, May 30-June 15, 2007. Ibid, “En Colombia no existe Trabajo Decente”, mimeo, Bo-gotá, May 30-June 15, 2007. Both presented at the 96th International Labor Conference.

107

of female employment, with a national total of 37,1% of the women employed.

The current economic model generates greater demand of employment for women, but under precarious and instable conditions. Between 60 and 70% of persons working at the lower links of the productive chains – picking fruit, sewing clothes, cutting flowers, assembling toys – are women, and this low position has consequences in the form of lower sala-ries and a weaker coverage by social security.

The degree of informality of men’s and women’s work in 2006 was, according to DANE, 57.5% among men and 60.2% among women.

Thus, of the 4,376,617 working men and 3,753,018 work-ing women, only 1,860,062 men and 1,493,701 women have formal jobs.

In average, 80% of the women workers earn less than two current legal minimum wages; and one current legal minimum wage, 436,000 pesos (US$218) covers only 45% of the cost of the average week’s basic shopping for a fam-ily. After the labor reform, Law 789, women reduced their spending on education, health and housing, as well as per-sonal care and savings. These measures have forced women to go into the informal economy to try to compensate for the loss in purchasing power, thus restricting their possibilities of participation and their right to rest.

3.2. The case of Community Mothers: Where is equity at the workplace?

The Colombian Institute for Family Welfare (Instituto Colombiano de Bienestar Familiar - ICBF) is the coor-dinating body of the National System of Family Welfare; it is responsible for social policies and for assistance pro-grams for children and families. From the beginning of the 1980s, the Community Mothers are linked to such programs in conditions of great vulnerability in terms of their economic and social rights, while assisting, caring for, and educating boys and girls aged between 0 and 6 years, residing in the poorest urban and rural regions in the country.

108

The ICBF has been unburdening itself on these women of its responsibility to care for the children, under denomina-tions that seek to remove their tasks from the idea of subordi-nate labor; that is why the women as known as “mothers” and their activities take place in a context of solidarity, under the denomination of “community.” Society does not condemn the fact that these women are not recognized as workers and keeps silent at the difficult situation they endure; their work is seen as an extension of the tasks that, traditionally, women carry out for their children at home. This situation is inadmissible in the framework of the ILO concept of decent work, which stipulates “employment of sufficient quality and quantity for every member of society.”

It seems evident that in this case all the elements of a labor relation are in place: - The Community Mothers carry out personally activities involving care for boys and girls. - They are in a situation of clear subordination in relation to the ICBF, as it is this institution that imparts the parameters within which they provide their services and has the power to impose sanctions on them if it deems necessary. – The activities in the ICBF homes are carried out during an 8-hour working day, although often, to help the mothers and fathers who use the program, they see themselves obliged to extend their working hours with no additional pay.

In spite of the conditions described, since the Mothers are not recognized as workers, under the concept of stipend they are paid a sum that is well below the minimum wage and that is far from being a decent income. 144

Despite the discrimination they have been subjected to historically, through their struggles women have achieved successes in terms of social security;145 but violations persist

144. A community mother received in 2002 an allowance of $132,120 Colombian pesos; in 2003, the amount was $153,000; in 2004, the allowance reached the amount of $161,.070; in 2005, $168,480; and this year, $185.780. In every case, the allowance is below the legal minimum wage, which for the year 2007 was $436,000.

145.Inthe1980s,thestruggleoftheCommunityMothersforcedtheStateto recognize themand include them in theSocialSecuritySystemthroughDecree1791of1990,whichestablished:“...toprovidepro-tectioninbasichealthtothiscontingentofthepopulationandtocarry

10�

of women’s fundamental rights that the State has committed itself to guarantee by signing and ratifying the various inter-national instruments that enshrine those rights.

They have no right to decent work, have no access to an income in conformity with the work they perform, nor social protection as workers, nor the right to social benefits as part of their labor relation. They are evident proof of the inequity surrounding labor relations, particularly when gender is in-volved.

4. Precarization and flexibilization of employment through CTA: Three cases

4.1 Sugar cane cultivationSugar has turned into one of the most important agricul-

tural export products. Approximately 900,000 tons of sugar are exported each year,an amount that places our country among the ten major sugar exporters in the world. 146 The 14 sugar mills that produce and process the sugar registered sales in 2005 of US$ 1,109 million, and final utilities of US$ 73,9 million. In the year 2006, Colombia exported 77,160

outsocialjustice,towhichtheyhavearight.”TheMothersthusbegintoenjoyageneral illnessandmaternity insurance,whichdoesnotincludefamilymedicine,andbegintobecoveredforincapacityandmaternitylicenseasaffiliatesoftheISS,but theyremainedunpro-tectedfromworkaccidentsandprofessionalillnesses,justastheyre-mainedexcludedfrominvalidity,old-age,andhealthinsurance.WiththepromulgationofLaw100of1993,theCommunityMotherswereincludedinthesubsidy-basedhealthsystemandthecontributivepen-sionsystem.Throughlaw223of1995,thevalue-addedtaxwasraisedbytwopointswithatleast30%forexpenseswithinthesubsidy-basedsystemestablishedbyLaw100/93withthepurposeofcompletingthevalueofthepaymentunits(UPC)oftheCommunityMothers,andtoguaranteetheiraffiliationassolidaryworkersattheSocialSecurityInstituteorahealthpromotionenterpriseoftheirchoice,obtaininginthiswaythebenefitsestablishedbythecontributivesystem.How-ever,theresourcesforeseenbythislawhavenotbeendestinedforthesocial securityof theCommunityMothers.With thepromulgationofLaw1023/2004,thecontributiontothecontributivehealthsystemremained,forthecommunitymothers,4%ofhalfaminimumwage.

146. Asoca a, “Energía: La nueva agenda del sector azucarero”, In: In-forme 2006 – 2007, http://www.asocana.org/informes/2006_2007

110

tons of raw sugar and 26,377 tons of white sugar to the Unit-ed States, the equivalent of 26,1% and 4,2% of the country’s total exports of raw and white sugar, respectively. 147

With regard to employment in this sector, according to the branch business association, Asocaña, sugar production generates approximately 36,000 direct jobs and 214,000 in-direct jobs, the great majority of them in the southwestern region of the country.

Of the direct jobs, 31% of the workers are hired directly by the mills, 33% are hired through the Associative Work Cooperatives (Cooperativas de Trabajo Asociado, CTA), 23% are workers hired by the sugar cane growers, 22% are hired by independent contractors, and 2% are workers with a union contract. 148

Some 16,000 direct workers in the sector are cane cut-ters, the most physically exhausting job but the worst remu-nerated of all in the process of sugar production. 90% of the cutters are hired through the CTA, a modality of subcon-tracting that does not allow joining a union and, above all, that exempts the companies from paying social benefits to the “associates” of the CTA, who instead have to cover those expenses themselves. And it doesn t even guarantee that the workers who toil under this form of contracting earn a legal minimum wage.

As an example, in the year 2005, a cane cutter with a direct contract covered by a collective convention received $5,682 Colombian pesos per ton of cut sugar cane, while a worker hired through a CTA received only $3,900 Colom-bian pesos - 31,4% less. 149 Therefore, the generalized use of labor force contracted through the CTA in this sector is gen-erating greater profits for the sugar mills, while at the same time it is sacrificing the rights of the workers to a decent sal-ary and to union representation.

147. Asoca a, “Anexo estadístico 2006 – 2007”, en Informe 2006 – 2007, http://www.asocana.org/informes/2006_2007

148. Ricardo Aricapa. Las Cooperativas de Trabajo Asociado del Sec-tor azucarero: ¿Flexibilización o salvajización laboral? Medellín. Escuela Nacional Sindical. P. 6

149. Ricardo Aricapa. Las Cooperativas de Trabajo Asociado del Sec-tor azucarero: ¿Flexibilización o salvajización laboral? Medellín: Escuela Nacional Sindical. P. 11.

111

4.2 FlowersThe flower-growing industry is another important export

sector, reporting in 2005 exports of 200,000 tons of fresh flowers, worth US$ 906 million. 150 84% of total exports go to the United States. As a result, Colombia is now the number one provider of cut flowers to the United States, capturing 60% of that market. 151

The flower-growing sector is very labor intensive: this industry generates approximately 110,000 direct and 94,000 indirect jobs, primarily in the departments of Cundinamarca and Antioquia. 60% of the labor force in this sector consists of women, many of them heads of households and with low levels of schooling, who have few work opportunities in oth-er areas of the economy.

According to a survey taken in 2006 by the Colombian NGO Cactus, 66% of the workers in the flower sector are contracted directly by the enterprises, while 34% are hired through third parties – 21% through temporary agencies, 8,7% through the CTA, and 4,3% through contractors. 152.

Of the workers with direct contracts with the enterprises, 62% have contracts for an indefinite period and 31% percent have fixed-term contracts in which the majority of the terms are not longer than four months153 – putting the workers in a situation of total job instability. According to the investiga-tions carried out by Cactus, the average salary of the work-ers in this sector is equivalent to the legal minimum wage, $436,000 Colombian pesos (US$ 218) monthly – a salary that fails to cover even half of the average basic shopping for a family, estimated at $891,598 pesos monthly (or US$ 446).

150 “Future looks rosy for Colombia’s flower trade”, Daily Telegraph, June 29, 2007, http://www.telegraph.co.uk/gardening/main.jhtml?xml=/gardening/2007/06/29/gcolombia29.x ml

151Asocolflores,Economía y mercados,http://www.asocolflores.org/site/new/mercados.html.

152DianaAlexandraCastañeda.Mujeres, floricultura, y multinacionales en Colombia.Bogota:CorporaciónCactus,2006.P.5.

153 Corporación Cactus. La contratación directa y la organización: Derechos para reconquistar, 2006. http://www.cactus.org.co/docu-mentos/encuesta_14_feb_2006.doc.

112

Whenever the flower workers have tried to create unions in order to demand better wages and less precarious working conditions, some companies have responded with anti-union practices. For example, in 2004, after the creation of a union at the Colombian affiliate of the United States company Dole Fresh Flowers, the company challenged the registration of the organization in the union register of the Ministry of So-cial Protection; it blocked a process of collective bargaining with the union; and, in October 2006, it even closed two of its plantations that had greater union presence.

4.3 Textiles and garments

The textiles and garments sector enjoys an important participation in Colombia’s foreign trade with the United States. This sector registered a total of US$4,461 million in sales en 2006; 29,7% of those sales (worth US$ 1.324 mil-lion) were to foreign firms In 2006, the United States was the destination of 34% of the exports of Colombian textiles and garments, with sales worth US$ 520,3 million. 154

This sector is characterized also by using much hand labor, generating approximately 600,000 direct and indirect jobs in the country, primarily in the metropolitan area of Bo-gotá and in the department of Antioquia. It is estimated that 80% of the labor force in the garments sector is female. In the garments industry, almost no worker has a labor contract with the companies that sell and export clothing.

The women garment workers create small family enter-prises that act as subcontactors of the large enterprises, as-sembling the garments for export in micro-workshops or in their own homes, under conditions of great precariousness.

Given that there are no labor-related obligations between the enterprise that sells the garments and the workers of the micro-industries that assemble their products, there are also no duties to pay them a remuneration equivalent or greater than the minimum wage, or to cover their social security needs, or to pay the surcharge for overtime by these workers.

Cases have been documented in Medellín of women gar-ment workers who earn monthly salaries equivalent to 60%

154. “Textiles y confecciones”. Dinero Magazine, May 25, 2007, P. 124.

113

of the monthly minimum wage (approximately $260.000 Co-lombian pesos, or US$130), while working days that go on, in average, for twelve hours. 155.

5. Temporary employment agencies and other forms of precarious contracting

ILO Convention 181 regarding private employment agencies determines that the States must adopt the necessary measures to make sure that the workers contracted by the private employment agencies providing the services referred to in Article 1 should not be deprived of their rights to as-sociation and to collective bargaining.

Last year, in view of the boom in labor intermediation, the government issued Decree 4369. Among other aspects, this norm brings clarity to the inspection and overview of temporary service enterprises and establishes that no natural or legal person can exercise the activity of temporary ser-vice enterprises if it is not duly authorized by the Ministry of Social Protection - such as those that work in food provi-sion, cleaning, private security and maintenance, or the co-operatives and pre- cooperatives of associated work, mutual funds, and others.

The Decree refers also to social security and estab-lishes that within the first ten (10) days of each month, the temporary service enterprises must inform the user of the service about the conditions of affiliation and the pay-ment of contributions to the Comprehensive Social Secu-rity System of the personnel that has rendered its services during the immediately preceding month.

Responsibility in the area of comprehensive social se-curity with regard to the worker is not the responsibility only of the temporary service enterprises; also the user company shall be severally responsible for the payment of the corresponding contributions, as well as for the eco-nomic and legal consequences derived from omission, evasion or elusion, adapting the norms to the latest rulings of the Supreme Court in the same sense.

155. Rosado, Juan Bernardo. Hay que hilar filo con los derechos labo-rales de las mujeres, 2007. http://www.ens.org.co/colombiamoda/la_moda_de_medellin.pdf.

114

Labor intermediation is a very attractive market, and this reflects in the growing number of companies that have been established recently offering such services: from 460 companies registered in 2005 at the Ministry of Social Protection, the number grew to 478 last year and to 584 in the first semester of 2007.

Temporary employment has been gaining ground rapidly in recent years, duplicating its participation in formal em-ployment in the private sector, growing from a share of 9 percent in 2003 to 18% in 2005. During that period, accord-ing to the Colombian Association of Enterprises of Tempo-rary Services (Acoset), the number of workers on a mission – as the persons under this form of contracting are called – grew from 401,797 to 659,481, or an increase of 64,1%.

The rise in temporary contracting appears much higher if preliminary information is taken into account according to which the number of temporary workers was 925,000 in 2006, amounting to an increase of 40,3% with respect to 2005 and of 130,2% with respect to 2003. 156

6. Precarization of employment in the public sectorThe process of precarization has not been implemented

only in the private sector; state employment does not escape labor precarization: service provision contracts, piecework contracts, and contracting through intermediaries such as Associative Work Cooperatives are palpable proof of the ex-pansion of this phenomenon.

The changes in public employment have great impact on labor relations, since in Colombia the State is a great genera-tor of employment. During many years it was thought that working with the State was a privilege because it offered sta-bility and all the guarantees derived from a typical contract, but with the advance of the privatizations of State enterprises - TELECOM, INRAVISIÓN, ISS, etc. – and the boom in atypical forms of contracting, it has become evident that we are witnessing a State that, besides behaving with permis-siveness toward the employers when they violate labor rights,

156. “El desempleo se resiste a bajar”. Portafolio newspaper, August 1, 2007.

115

acts as an employer that disregards the ILO conventions and the workers minimal guarantees.

Therefore, it is no surprise how, without the least con-sideration, the workers are let go massively and the unions are dismantled, in the midst of the consolidation of a State model imposed by the International Monetary Fund and the World Bank, which insist on reducing more and more the size of the State and in giving more and more space and room to maneuver to private incentive.

Palpable proof of the way in which the State plays the role of boss can be found in the recent closing of the ISS clin-ics: not only was there disregard of the unions as a legitimate interlocutor, but also, those health centers were militarized during the night to avoid actions by the workers that would get in the way of the purposes of the present government.

The employer-State employs more than one million persons, half of whom earn less than two legal minimum wages. The State pays subsistence salaries. Union freedom is restricted for public servants because the majority of them are denied the rights to collective bargaining and to strike – in spite of the fact that Colombia ratified ILO Conventions 87, 98, 151, and 154.

7. Child labor: a factor that restricts decent workThe policy of the Inter-Institutional Committee for the

Eradication of Child Labor and the Protection of the Young Worker (ETI) 157 presents grave flaws as a mechanism for the articulation of the central sphere with regional spaces, in the identification of bottlenecks in its implementation, and regarding the political will to carry out decisive structural action at local and national level toward the eradication of child labor. 158

Families in Action is another government program that consists in giving subsidies to families so their children can go to school. It is directed to Level I Sisben beneficia-

157. Created by Decree 859 of 1995.158. Progress Evaluation of the III National Plan for the Eradication of

Child Labor and the Protection of Youth Labor in Colombia, 2003-2006.

116

ries and to displaced persons. It has been favorably evalu-ated for its results, but it shows flaws in that it is not a universal policy (that is, it does not reach the entire popu-lation of children in the country), it is assigned with a sub-sidy approach and not a rights approach, and it is assigned under conditions that are humiliating for the families (who have to stand in line during long hours in the sun or the rain and often have to stay in line for days and nights to be able to register); also, it is a program that lacks the required coor-dination with other processes of restitution of rights so it can have the desired impact.

On the contrary, the result thus far is a proliferation of activities and a segmentation of the public supply of services, generating a dispersal that affects negatively the definition of clear objectives of public policies in the social sector.

In spite of the fact that DANE statistics show a drop of 3,9 percentage points between 2001 and 2005, we still have in the country 1,059,000 children working; and, if we take into account a broader definition of child labor, then the 961,507 children must be added who spend more than 15 hours a week on household chores.

Although there may have been a drop in numbers, hav-ing 2,020,317 boys and girls working cannot be considered great progress, as this means that of every 10 boys and girls in the country, one of the is working. Also, 19% of these children do not go to school and the rest of them combine both work and school.

The main reasons that lead children to work are, in the first place, to contribute to the sustenance of the family, and in second place, to help out with the family s economic ac-tivity. This shows that poverty remains one of the principal structural causes of child labor. The main economic activ-ity is agriculture, with 393,038; the second, commerce, with 338.965. 159

159 DANE, Results of the Module on Child Labor, 2005

117

D..PROPOSALS.FOR.OVERCOMING.THIS.SITUATION

Achieving the goal of decent work requires multiple policies and sustained measures during several years. This is why, responding to the gravity and precariousness of the labor situation, and profiting from the presence of the ILO in the country, the union federations are willing to take part in coordinating a “National Plan for Decent Work.” However, it is possible immediately to reach agreements on the fol-lowing proposals, which would begin to guide Colombian society toward the achievement of decent work.1. In the area of economic and social policies1.1 Include in the agenda of the Permanent Commission

on Coordination of Wage and Labor Policies (CPCPSL in Spanish) the discussion on the changes in economic policy that are needed in order to maintain and increase economic growth, while at the same time generating more quality productive jobs.

1.2 Design and implement mechanisms demanding from direct private investors full respect of labor rights and, in particular, that they prevent job reduction and guar-antee union freedom.

1.3 Include in the agenda of the CPCPSL a discussion on mechanisms for the full participation of the union fed-erations in the negotiation of trade agreements.

2. In the area of immediate measures that the govern-ment can and must adopt

2.1 Designate the Commission for Monitoring and Veri-fication of Job- creation Policies contemplated in la-bor reform (Law 789 of 2002); and, according to its report, the government presents before Congress a bill modifying or revoking norms that have had no practical effects on employment generation.

2.2 Revive the Ministry of Labor and strengthen the Labor Inspection.

2.3 Adopt the normative framework necessary in order that State bodies abstain from using forms of contracting that make labor precarious, particularly associate labor cooperatives, service provision contracts, etc.

118

2.4 Sharpen mechanisms for oversight and control of tem-porary employment agencies.

2.5 Sharpen mechanisms for oversight and control of eva-sion of contributions to social security and promote and demand that the workers be registered in the contribu-tive health insurance system.

2.6 With regard to the associated work cooperatives, a bill must be presented urgently, fruit of social dialogue, establishing a legal framework for the functioning of the cooperatives based on ILO Recommendation 193, which determines the parameters that the countries must follow in this regard.

2.7 It is necessary that Convention 81 be ratified in its sec-ond part, labor inspection in the commerce sector, be-cause the majority of workers, and particularly child labor and indecent work conditions, are to be found in the commerce sector.

2.8 The Project of a new model of labor inspection, pre-pared with the support of USAID-Colombia, should be discussed and put forward in consensus with the union federations.

2.9 With regard to the Community Mothers, it is urgent that a law be passed recognizing them as workers and that this form of exploitation against women be abolished.

2.10 Initiate and advance the discussion to put forward a labor statute that guarantees labor rights, in harmony with what ILO Conventions have established.

2.11 Restore the work contract as a central element of labor relations, doing away with the function of labor inter-mediation of the Associative Work Cooperatives and other practices of employment without a contract.

2.12 Carry out a study on the current state of decent work in the private sector in Colombia, in the 5000 most im-portant companies, and adopt a specific agreement to promote decent work in this sector. Proceed similarly in State institutions.

2.13 The eradication of child labor requires forceful action against poverty as a structural cause of child labor – action that effectively restores the rights of the child (in quantity and quality); that is, to stop implementing

11�

isolated programs and projects and, instead, generate proposals guaranteeing children s rights to education, health, nutrition, recreation, participation, etc. univer-sally and without cost.

2.14 Child labor is a symptom of the few work opportunities that the adults have, and of the bad working conditions they must endure; this is why a policy of decent em-ployment is needed for the adults, so the children do not have to complement, and even less substitute, the adults as generators of family income with their work.

121

CHAPTER.IV..PROMOTION.OF.A.USEFUL.SOCIAL.DIALOGUE

A..The.normative.framework.of.the.ILOThe ILO bases its methods of action on dialogue and

consensus- building among employers, workers, and gov-ernments. In developing these principles, Recommendation 113 regarding consultation by branch of economic activity, and Convention 144, on three-party consultation, refer to an effective and efficient dialogue to reach the ultimate objec-tive of putting into effect, within each country, the ILO prin-ciples and norms.

B..Measures.adopted.by.the.StateInternal legislation, the Constitution itself, enshrines

the principle of dialogue and consensus-building to promote good relations between employers and workers, solve collec-tive labor problems, and coordinate salary and labor policies (Art. 56).

Law 278 of 1996 has regulated that constitutional norm and invokes, in general terms, the ILO provisions on dia-logue and consensus-building. However, during the period of the present government, the representation based on par-ity between employers and workers has been affected within the Permanent Consensus-Building Commission on

Salary and Labor Policies (which we will call also “Per-manent Commission” or “Permanent Consensus-Building Commission”) in detriment of the workers, whose repre-sentation, including that of pensioned workers, was reduced from five (5) to four (4). 160

160 Law 990 of 2005.

122

Where the greatest distance from the ILO norms on three-party consultation can be found is in their practical ap-plication. Indeed, in spite of the efforts and requests by the union organizations, the majority of the norms related to the world of work or that affect the rights of the workers, have not been previously discussed by the organs established to promote dialogue and consensus-building on salary and la-bor policies.

C..The.present.situationThe government has promoted labor reforms, including

even constitutional reforms, without previous dialogue with the workers organizations and in open contradiction with the opinions expressed by its spokespersons during the legisla-tive procedure on such measures.

Exceptionally, an important and significant reform, that of the adoption of the new Code of Labor Procedure, which establishes orality in the procedures of that jurisdiction, was the result of three-party consultation promoted by the Per-manent Commission.

In the regional context, meetings and contacts among the social partners take place, but the functioning of the depart-mental sub- commissions foreseen in Article 3 of the above-mentioned Law 278 of 1996 has not developed in an articu-lated and coordinated manner.

Other mechanisms created by the Colombian govern-ment to promote dialogue and consensus-building, such as the three-party advisory committee on productivity, and the inter-institutional commission on the human rights of the workers, either have not functioned at all or have worked intermittently and inefficiently and have not achieved their goals.

In general, the consensus-building organs, although they establish agendas for discussion, do not treat these agendas systematically; therefore their functioning is irregular.

It is also customary that high government officials, in-cluding the President of the Republic, carry out meetings with the union leadership, and that on those occasions topics are handled that are of interest to the union movement. Like-wise, regional meetings have been promoted among high na-

123

tional and regional authorities with union leaders, in order to promote rapprochement and a relaxed atmosphere.

However, these meetings cannot substitute for the in-stitutional spaces that must develop a previously discussed agenda and try to arrive at tasks and commitments, so that the three-party consultation is effective and useful.

The Program for the Protection of Unions and Unionists, attached to the Ministry of the Interior and Justice, has not always responded with the celerity that the threats and at-tacks require, although it has been provided with the neces-sary resources; and, in any case, all by itself it is insufficient to give shape to any serious policy to confront anti-union violence in Colombia.

As various international analysts have pointed out, such protection must be accompanied by serious criminal inves-tigations that lead the perpetrators and participants to the courts; so that, with all the guarantees and according to their degree of responsibility, the appropriate sanctions are applied. Unfortunately, in Colombia impunity protects the perpetrators of crimes against unionists, and they and their organizations have been deprived of comprehensive repara-tion of their rights.

The Special Commission on the Management of Con-flicts before the ILO (from now on “Commission on Conflict Management”), created seven years ago through a decision of the Permanent Consensus-Building Commission, has been formally set up, its regulations are in the process of be-ing discussed, as is the list of the first cases to be dealt with by the Commission – all of it at the request of the Represen-tative of the ILO.

The union federations hope that these efforts will bear fruit, and that the Commission on Conflict Management con-tributes to restore the rights of the Colombian workers and their organizations that were violated; in addition, to promote adjustments to the legislation and practice according ILO norms on freedom of association and collective bargaining.

In conclusion, in recent years the workers organized in the union federations have tried to resort to the con-sensus-building spaces in search of solutions to problems

124

of common interest, with few results. It can be said that in such spaces an exchange of opinions takes place with the employers and the government, but there seems to be no genuine interest in bringing the parties positions closer and even less to reach agreements.

D..Proposals.for.overcoming.the.situationIt is imperative that effective tripartite consultations take

place, as established in Recommendation 113 on consulta-tion with economic sectors, and in Convention 144 on tripar-tite consultation.

The Colombian union movement requires urgently that the bodies of the International Labor Organization and, in particular, its Office, act in a decisive manner to guarantee that social dialogue and consensus building take place in Co-lombia and contribute to the implementation of international labor norms, in the legislation as well as in practice.

At the 95th International Labor Conference, the repre-sentatives of the government, the employers and the workers subscribed a Tripartite Agreement for Freedom of Associa-tion and Democracy “in the framework of ILO Conventions 87 and 98.”

The Accord, with the backing of the ILO permanent rep-resentative, seeks to support the social partners to promote decent work; the defense of the fundamental rights of the workers, their leaders and their organization; union free-doms, including freedom of association, freedom of expres-sion, and the right to collective bargaining; as well as the fight against impunity.

Due to the above, we propose these lines of activity to approach the topics necessary for complying with and carry-ing out the above- mentioned Tripartite Agreement.

We propose that these lines of activity be discussed in the Permanent Consensus-Building Commission on Salary and Labor Policies and, in their field of competence, by other consensus-building organs already established in the inter-nal legal order. In this body discussion will take place and the corresponding political decisions will be made; there-fore, the representatives of the social partners must be of the highest level.

125

An urgent measure has to do with reestablishing egali-tarian representation of the employers and the workers in this Commission.

Before enumerating the topics of the agenda that the Per-manent Consensus-Building Commission must develop, we propose some general criteria applicable to all consensus-building organs.

1. General criteriaApplicable to all consensus-building organs foreseen in

Law 278 of 1996 and in Decrees 814 of 1995 and 1413 of 1997, thus:1.1. That an agenda be established, according to the compe-

tence and areas of activity of each one, giving priority to the topics foreseen in the Tripartite Accord;

1.2. That the organs function with regularity, according to a schedule of meetings;

1.3. That they adopt and carry out a Plan of Action related to their competences and areas of activity;

1.4. That the following existing bodies act as technical and advisory organs of the Permanent Consensus-Building Commission:

a. Inter-institutional Commission on the Human Rights of the Workers

b. Tripartite Advisory Committee on Productivityc. Risk Evaluation and Regulation Committee (CRER)

2. Agenda for the Permanent Consensus-Building Com-mission

The agenda of the Permanent Consensus-Building Com-mission must be organized according to the topics included in the Tripartite Accord:2.1. Union freedom and adoption of ILO standards:2.1.1. Adaptation of internal norms to heed the recommenda-

tions of the ILO control organs;2.1.2.Review of the legislation and practice in the imple-

mentation of the ILO Conventions ratified by Colom-bia, such as that onlabor inspection, measures to pre-vent and eradicate child labor and discrimination in the workplace;

126

2.1.3. Consultations recommended by the Committee on Freedom of Association regarding the effects of Legisla-tive Act No. 1 of 2005 on the fundamental rights of the workers;

2.1.4. Discussion and adoption of a National Plan for De-cent Work ;

2.1.5. Matters related to the rights of public servants, includ-ing union freedom, the right to collective bargaining, ad-ministrative career and social benefits;

2.1.6. Topics that derive from the Commission on Conflict Management before the ILO.

2.2. The topics that derive from the Inter-Institutional Com-mission on the Human Rights of the Workers, particu-larly those related with the fight against impunity and the prevention of violations of the fundamental rights of the workers and their organizations, specifically regarding the persons physical integrity and the integrity of orga-nizations;

2.3. Topics related to the protection of unionists and those resulting from the application of the Program for the Pro-tection of Union Members of the Ministry of the Inte-rior and Justice, and of the decisions and policies of the CRER;

2.4. Strengthening the presence of the ILO as a result of the recommendations of the High-Level Commission, ac-cording to the decision announced by the Director Gen-eral of the International Labor Organization.

3. Other topics related to the fundamental rights and union freedoms of the workers3.1 Discussion on the collective reparation that the Colom-

bian union movement has the right to by having been subjected to extreme violence, which has meant the de-struction of organizations and the a real impossibility of promoting and fomenting workers organization;

3.2 Discussion on the effects on the rights of Colombian workers derived from the signing of free-trade agree-ments or similar accords with other states or supra-na-tional bodies. The aim is to bring about previous and si-multaneous discussion, so that the opinions of the union

127

organizations will be taken into account in the negotia-tions to be carried out;

3.3 Everything relating to the preparation and follow-up of the International Labor Conferences and the obligations that derive from Articles 19 and 22 of the ILO Constitu-tion (preparation, ratification of treaties, and implemen-tation of recommendations).

4. Issues that are within the competence of the Permanent Consensus-Building Commission4.1 Discussion and adoption of an Employment Generation

Plan4.2 Salaries4.2.1 Fixing of the minimum wage 4.2.2 Remuneration of

public servants4.2.3 Other matters related to the remuneration of workers4.3 Topics deriving from the studies carried out by the Tri-

partita Advisory Committee on Productivity4.4 Matters related to the administration of justice4.4.1 Follow up of the implementation of the oral system in

labor justice4.4.2 Everything related to the precarization of labor rela-

tions and the multiple jurisdictions to which the workers must resort in order to demand their rights.

4.4.3 The problems raised by the High Courts not adopting the ILO recommendations and Conventions

4.4.4 Monitoring of the Departmental Consensus-building Sub- Commissions foreseen in Law 278 of 1996.

4.5 Sustainable enterprises: For the union movement, it is an important topic, to the extent that sustainability must be compatible with decent work and with the exercise of union freedoms.

4.6 Revision of labor reform, Law 789 of 2002, based on the conclusions of the Commission foreseen in Article 46 of said law.

4.7 Discussion and adoption of the Labor Statute, to be pre-sented. before the National Congress, in conformity with the mandate of Article 53 of the Constitution.

128

5. Topics proposed by the employers and the government that have no specific place in the Tripartite Accord, nor among the matters of competence of the Permanent Con-sensus-Building Commission5.1 Ethics: A fundamental question that consists in honoring

the commitments made by the employers and the gov-ernment within the ILO.

5.2 Assertive communication: In the sense of truthful and adequate communications. The scope of this topic must be defined – for example, to whom the reflections and recommendations are addressed.

12�

CHAPTER.V..EVALUATION.OF.THE.PERMANENT.REPRESENTATION.OF.THE.ILO

The decision to establish a permanent presence of the ILO in Colombia, contained in the Tripartite Agreement of 2006, has not brought progress in the enjoyment of the rights of the workers; it has not acted as stimulus so the employers take seriously their commitments as ILO mandators, or so the State complies fully with its obligations regarding inter-national labor norms.

This report aims to evaluate the four thematic hubs con-tained in the Agreement, as follows:(i) promotion and defense of the fundamental rights of the

workers, of their union leaders, and of their organiza-tions, especially in what refers to life;

(ii) union freedom, freedom of association, freedom of ex-pression, collective bargaining, as well as free enterprise for the employers;

(iii) technical cooperation to promote decent work;(iv) promotion of social dialogue in Colombia.

However, a superficial overview of the process of estab-lishing the permanent representation and of its judgments corroborates our statement about the inefficacy of the Agree-ment due to the Colombian government s unilateral policies, which are contrary to the ILO principles and postulates, and of the anti-union, anti-dialogue attitude of the Colombian employers, who enjoy the backing of the government.

Thanks to the good offices of the ILO, in October 2006 a three-party rapprochement became possible in which a man-date for the permanent office was defined. On October 18, 2006, in Bogotá, the mandators identified sixteen functions that would allow the implementation and development of the fundamental themes agreed upon in the Tripartite Agree-

130

ment. This document was presented before the Administra-tive Council of the International Labor Office in November of 2006. 161 The functions assigned as pivotal to the local office are:1. “Coordinate the technical cooperation that the ILO Office

will provide to the country to promote decent work and the defense of the fundamental rights of the workers, of their trade union leaders and of their organizations, with a particular emphasis on protecting the lives of trade unionists, trade union freedom and freedom of associa-tion and expression, and collective bargaining, as well as free enterprise for employers.

2. By means of the instruments and resources it has at hand, promote a culture of consensus-building and compliance with the obligations and rights derived from the Consti-tution and the ILO Conventions.

3. Promote and organize training activities with the execu-tive, legislative, and judicial branches of government, and provide follow up.

4. Promote and organize training activities with members of the trade union sector and economic sector associa-tions to provide follow up.

5. At the request of the government and of the social part-ners, provide advice in drawing up normative proposals in areas related to its mandate.

6. At the invitation of the legislative branch, attend meet-ings at which draft bills are discussed related to its man-date.

7. Participation in meetings of the Permanent Consensus-Building Commission on Salary and Labor Policies and in all other tripartite spaces for social dialogue.

8. Promote the relaunching of the work of the Special Com-mission for Conflict Management before the ILO and participate in its meetings.

9. Provide advice to the workers, employers, and the gov-ernment on the application of the Conventions, recom-mendations, and other instruments adopted by the ILO.

161 297th meeting of the Administrative Council, International Labor Organization, Geneva, November 2006. GB297-TC-5-2-2006-10-0452-1-Sp.doc

131

10. Provide advice to the social partners and the authorities on comments formulated by the control organs of the ILO, particularly those expressed by the Committee on Freedom of Association.

11. At the request of any of the social actors, provide advice regarding the existing control mechanisms for the appli-cation of the Conventions ratified by Colombia.

12. Participate as guest in meetings of the Inter-Institutional Commission for the Promotion and Protection of the Hu-man Rights of the Workers, and in the Committee on the Regulation and Evaluation of Risks (CRER) of the Interior and Justice Ministry.

13. Maintain contact with the General Prosecutor’s Office and the General Procurator’s Office with regard to ju-dicial and disciplinary investigations relative to acts of violence against the physical integrity of trade union and economic association members and leaders, particularly those in connection with Case 1787 before the Commit-tee on Freedom of Association.

14. At the request of the General Prosecutor’s Office and/or the Ministry of Social Protection, participate in meetings of the committees that exist or of those to be created, in order to promote the investigation of cases related to acts of violence suffered by members of the trade union and entrepreneurial sectors.

15. Draft a monthly report on the progress made relating to the implementation of its mandate, to be presented before the Permanent Commission on Labor and Wage Policies.

16. Promote meetings with agencies of the United Nations System, representatives of potential donor countries, and other national or international organizations that can provide support to the implementation of the Tripartite Accord.”Only since January 2007 is there a permanent ILO

representative in Colombia. According to his first report, the representative has concentrated efforts on guarantee-ing the functioning of the local office in Colombia, and has carried out intense activity making contacts not only with the ILO mandators, but also with other relevant sectors of

132

Colombian society. He has held meetings as described in his functions numbers seven, twelve, and fourteen.

In particular, the permanent representative has taken part in the meetings of the Permanent Commission on La-bor and Wage Policies, the Committee on the Regulation and Evaluation of Risks (CRER), as well as those to which he has been invited by the General Prosecutor s Office to present progress on that Office s investigative efforts. He has also participated in various meetings and seminars with different employers and State and trade union representatives in the country.

The representative was able to install formally the Spe-cial Commission for the Management of Conflicts before the ILO, in spite of the obstacles presented by the entrepreneur-ial sector, headed by the ANDI.162 This organization carried out some activities regarding cases of noncompliance with the ILO Conventions presented by the workers organiza-tions; however, it has not proposed any concrete solutions for any of the conflicts up to now.

With respect to other organisms and institutional spaces for social dialogue that exist in Colombia, such as the Inter-institutional Commission on the Human Rights of the Work-ers and the Advisory

Committee on Productivity, unfortunately the represen-tative s efforts have not been sufficient to reactivate them permanently and effectively.

Regarding functions two, three, four, five, nine, ten, elev-en, and sixteen, some activities have been carried out but, given the seriousness of the situation of union freedom in Colombia, they have not had sufficient impact. In the opinion of the union federations, these eight functions represent the reason for being and the ultimate meaning of the Tripartite Accord. They are the ones that, if achieved fully, can lead to a real and serious accompaniment and produce significant changes in favor of trade union freedom and the rights of the workers and their organizations.

162. Asociación Nacional de Industriales. (National Association of In-dustrialists)

133

It must be pointed out that the representative has been able to obtain financial and logistical support from other entities of the ILO; but it is to be hoped that the permanent office will have its own budget and regular resources that are in relation to the enormity of the tasks and challenges it must face. Also, with respect to technical and adminis-trative staff, the office must be provided with the neces-sary personnel, both in quantity and in quality, to allow it to fulfill its functions appropriately.

In October 2006, the mechanism for financing the per-manent office was established in concrete terms. 163 For one of the main thematic hubs of the Agreement, funding was approved in the amount of US$1,7 million through the Of-fice of the Vice-President of the Republic and the General Prosecutor s Office.

These funds are destined to cover the expenses related to the thematic hub on the promotion and defense of the fun-damental rights of the workers, of their trade union leaders and of their organizations, with a particular emphasis on pro-tecting the lives of trade unionists, trade union freedom and freedom of association and expression, and collective bar-gaining – specifically in what concerns the multiple recom-mendations of the ILO control organs regarding the grave situation of impunity.

A second amount of concrete funding refers to US$118.800 destined to cover expenses in “activities in sup-port to the implementation of the Tripartite Agreement.” 164 These funds are remnants from the budget formerly destined for Colombia by the ILO for technical cooperation projects.

The government announced the appropriation of five mil-lion U.S. dollars. For the first year, the government included the sum of 1,8 million dollars in a pre-project of the national budget approved by the Congress. This sum will be destined for funding the four main thematic hubs of the Agreement.

There is a budget item to support the investigative work of the General Prosecutor s Office, leaving aside other as-

163. Annex No. I, 297th meeting of the Administrative Council, Interna-tional Labor Organization, Geneva, November 2006. GB297-TC-5-2-2006-10-0452-1-Sp.doc

164. Idem.

134

pects of the promotion and defense of the fundamental rights of union members and union leaders and their organizations, concerning especially life, freedom, and integrity.

In conclusion, a greater financial commitment is required of the Colombian State, so that the permanent office in Co-lombia can carry out its responsibilities.

Concerning the permanent office, it should be strength-ened and be able to rely, as the Director General has offered, on the support of the technical services of the Geneva office and of the specialists in the region, since only in this way will it be possible to make significant progress in the elimination of legal and practical obstacles that hinder the full enjoyment of union freedoms in Colombia; and for an adequate and ef-fective implementation of social dialogue and decent work.

The possibility of access to experts permanently based in Colombia should not be ruled out, as in the case of the permanent Office of the U.N. High Commissioner for Hu-man Rights, where such experts promote the functions of the office and support the government and the beneficiaries in order to advance in the implementation of its mandate.

It is to be hoped, as a result of the high-level mission, that the ILO permanent office will provide itself with a work plan to push forward the thematic hubs of the Agreement; that it will be assigned a regular budget to enable it to carry out its responsibilities adequately; and that it can rely on a team of experts on each one of the topics of the Tripartite Agreement who will work shoulder to shoulder in the three- party con-sensus-building spaces.

CARLOS RODRIGUEZ DIAZPresident CUT

APECIDES ALVIS FERNANDEZ President CTC

JULIO ROBERTO GOMEZ E.Secretary General CGT

JESÚS ERNESTO MENDOZA President CPC

135

ANNEX..RECOMMENDATIONS.OF.THE.CONTROL.ORGANS.AND.SPECIAL.MECHANISMS.

FOR.COLOMBIA.

1. Direct Contacts Mission (2000)

ObservationsAnti-union violence: About programme for the pro-

tection of Human Rights defenders which has extended to trade union leaders “[7]…the mission considers that the budgetary allocation should certainly be substantially increased and further supplementary measures should be examined in consultation with the trade union organiza-tions. ”.

Anti-union violence: The Mission consider that “[10]…substantial additional efforts must be made to com-bat the very serious and intolerable situation of impunity, which is one of the main causes of the violence. ”

Anti-union violence: About “[12]…the trade union movement has a very important role to play to contribute to these objectives and the success of the peace process which cannot be dissociated from social justice (…). The mission would like to emphasize here the importance of developing further tripartite negotiation within the Standing Negotia-tion Committee.”

Implementation in law and practice: The Mission consider that “[15]…the Government has yet to confirm the outcome of the measures taken and commitments made in the legislative sphere.”

136

2. Special Representative of the Director-General for Co-operation with Colombia

2.1 First Report of Special Representative (2000)

ObservationsImplementation in law and practice: The Represen-

tative suggests “[23]…to urge that the recommendations of the Committee on Freedom of Association be implemented and to cooperate in the search for solutions to the problems observed by the direct contacts mission, and that he is very anxious to promote social dialogue and consultation, a fact that has been acknowledged by the social partners them-selves.”

Social Dialogue: The Representative suggests “[23]…the revival of tripartite consultations under the auspices of the Standing Negotiation Committee on Wages and Labour Policies and its subcommittees”.

Social Dialogue: The Representative suggests “[23]…to set up a tripartite commission to examine complaints by the social partners before they are presented to the ILO s supervisory bodies; the purpose of this would be to exam-ine disputes while retaining the option of bringing them before the ILO if no solution is found.”

2.2. Second Report of Special Representative (2001)

ObservationImplementation in law and practice: The representa-

tive suggests “…the Government will redouble its efforts to put into practice the recommendations and conclusions of the Committee on Freedom of Association and of the di-rect contacts mission carried out in February 2000 in order to improve the desperate situation affecting the Colombian trade union movement.”

137

2.3. Third Report of Special Representative (2001)

2.3.1. Preventive Measures

ObservationsAnti-union violence: “Improve the systems of evalu-

ating the security risks faced by trade union officials, ac-tivists and members, taking account of the slow pace of ad-ministrative procedures and the deficiencies manifested in cases in which the degree of danger faced by trade union-ists was not correctly assessed.”

Anti-union violence: “Extend protection measures for trade union officials, activists and members and trade union premises and determine new means of protection in high-risk areas.”

Anti-union violence: “Establish new risk evaluation committees at the regional level.”

Anti-union violence: “Include representatives of all the trade union confederations in the Committee for the Regulation and Evaluation ofRisks.”

Anti-union violence: “Enable trade union officials, activists and members who have received threats to leave the country immediately at their request.”

Anti-union violence: “Encourage employers, both in the public and in the private sector, to participate in the adoption of measures aimed at protecting the lives of trade union officials, activists and members. ”

Anti-union violence: “Launch campaigns to raise public awareness of the lack of tolerance displayed towards persons who defend labour rights. ”

Social Dialogue: “Strengthen the activities of the “dé-tente committees” at the regional level.”

138

2.3.2. Impunity

ObservationsAnti-union violence: “Strengthen machinery for con-

ducting inquiries and punishing perpetrators in cases of attacks on trade union officials, activists and members; in this respect, it would be advisable to increase the budget of the Attorney-General’s Office and the Procurator- Gen-eral’s Office to enable them to carry out their tasks effi-ciently (…), avoiding any legal measure that might reduce the powers of these bodies, as it has been the case with the recent legal reform.”

Anti-union violence: “Seek the views of experts of other countries to assess the effectiveness of witness pro-tection programmes that have been set up in the state inves-tigatory bodies and provide increased budgetary resources to enable them to move ahead with the proceedings pend-ing in the courts in cases of murders and attacks on trade union officials, activists and members.”

Anti-union violence: “Continue to step up activities aimed at dismantling the paramilitary groups and any in-surgent groups infringing the freedom of trade union of-ficials, activists and members.”

2.3.3. Freedom of AssociationObservations

Freedom Association: “Expedite judicial proceedings ini-tiated in cases of violation of trade union officials immunity.”

Freedom Association (Collective Bargaining): “Ensure as soon as possible the application of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collec-tive Bargaining Convention, 1981 (No. 154), bearing in mind the difficult situation of workers in the public sector. Although progress has been made in preparing a draft decree on the right of public employees to bargain collectively, the Legal Secretary of the Office of the President decided to postpone the processing of the decree, and sent it back to the Ministry of Labour.” Freedom Association: “Coordinate policies with the public and private sectors to prevent practices that lead to a drastic reduction in the membership of trade unions.”

13�

Social Dialogue: “Promote an atmosphere of trust be-tween the social partners and the Government and encourage social dialogue as the basis for strengthening the trade union movement and resolving the problems affecting trade union members.”

Social Dialogue: “Enhance the activity of the Special Committee for the Handling of Conflicts referred to the ILO recently created. ”

Freedom Association (right to strike): “Make progress with the drafting of bills on essential public services in which strikes may be prohibited; on the possibility of an expeditious appeals procedure before the judicial authority against deci-sions of the administrative authority declaring a strike illegal; and on the transformation of compulsory arbitration at the request of the Ministry of Labour, where a strike lasts more than 60 days, into arbitration requiring the approval of the parties to the dispute. ”

3. Committee on the Application of Standards

3.1. Information and reports: Colombia

3.1.1. 2000

CommentsFreedom Association: “…the Committee of Experts

insisted that the Government should remove all the obsta-cles that hinder the right of workers to form and join trade unions of their own choosing, to elect their representatives in full freedom and the right of workers organizations to or-ganize their activities without interference from the public authorities which restrict or impede their lawful exercise”

Freedom Association: “It stressed that it was for the Committee of Experts to examine the compatibility of this legislation with the legal requirements of the Convention. [No. 87].”

Anti-union violence: “The Committee recalled that the full respect of civil liberties was essential to the imple-mentation of the Convention [No. 87].”

140

Freedom Association: “It urged the Government to take further measures in order to bring its legislation and practice into full conformity with the Convention [No87]”

Freedom Association: “It expressed the firm hope that the Government would supply a detailed report to the com-ing session of the Committee of Experts on genuine prog-ress made in law and practice to ensure the application of this Convention [No, 87]”.

3.1.2. 2001

CommentsSocial Dialogue: “The Committee took note of the in-

formation on the development of the peace plan and hoped that there would be progress as a result, in particular with regard to compliance with international humanitarian law and the pursuit of negotiated political solutions to the in-ternal conflict.”

Social Dialogue: “The Committee considered that strengthened social dialogue between the social partners would be the best way of conducting that activity. [applica-tion of Convention No. 87]

Anti-union violence: The Committee recalled that full respect for civil liberties was essential for the application of the Convention [No. 87].

Anti-union violence: “The Committee emphasized that the climate of impunity in the country represented a serious threat to the exercise of trade union freedom. The Committee urged the Government to take further steps to bring legislation and practice into full conformity with the Convention [No. 87] in the near future”

Implementation in law and practice: The Commit-tee “…expressed the firm hope that the Government would provide a detailed report to the next meeting of the Com-mittee of Experts with news of greater progress in legisla-tion and practice to ensure the application of that Conven-tion [No. 87] and recalled that it could call on the technical assistance of the Office in the context of that process.”

141

3.1.3. 2002

CommentsAnti-union violence: The Committee “… urged the

Government to take the necessary measures urgently to bring an end to this situation of insecurity by restoring re-spect for fundamental human rights and, in particular, the right to life and security of persons so that workers and employers organizations could fully exercise their rights recognized by the Convention [No. 87].”

Anti-union violence: “… the Committee urged the Government to establish and strengthen the institutions necessary to put a stop to the intolerable situation of im-punity prevalent in the country and which was a serious obstacle to the free exercise of trade union rights.”

Implementation in law and practice: “The Commit-tee made an urgent appeal to the Government to take the necessary measures immediately with a view to guarantee-ing full application of the Convention both in law and in practice.”

3.1.4. 2003

CommentsAnti-union violence: ” The Committee noted that the

Committee on Freedom of Association had examined the complaints concerning assassinations and acts of violence against unionists. The Committee noted with deep concern the dramatic situation of violence”

Anti-union violence: “…the Committee requests the Government once again to reinforce the necessary institu-tions in order to put an end to the situation of impunity, which is a serious obstacle to the free exercise of the free-dom of association guaranteed by the Convention [No. 87].”

Anti-union violence: “The Committee urged the Gov-ernment to immediately take the necessary measures to put an end to this situation of insecurity so that workers and employers organizations could fully exercise the rights they are entitled to under the Convention [No. 87], by re-storing respect for fundamental human rights, in particular the right to life and security.”

142

Freedom association: “The Committee addressed an urgent call to the Government to immediately take the measures necessary to guarantee the full implementation of the Convention [No.87] in both law and practice.”

3.1.5. 2004

CommentsAnti-union violence: “The Committee took note of the

Government s declarations according to which the number of murders of trade unionists and other acts of violence had dropped and the authorities had adopted measures to protect trade unionists.”

Anti-union violence: “The Committee also took note of the Work Plan of the Inter-Institutional Committee for the Prevention and Protection of the Human Rights of Workers and the functioning of the Special Committee to Promote Investigation into human rights violations.”

Anti-union violence: The Committee “…again re-quested the Government to guarantee the right to life and security and to reinforce urgently the necessary institutions in order to put an end to the situation of impunity”.

Freedom Association: “The Committee once again urged the Government to immediately take the necessary measures in order to guarantee the full implementation of the Convention [No. 87].”

3.1.6. 2005

CommentsAnti-union violence: “The Committee condemned

once again (…) all these acts of violence in the context of the dramatic situation of violence experienced by the coun-try and indicated to the Government that it had the obliga-tion to take all necessary measures urgently in order to put an end to violence and guarantee the security of persons.”

143

Anti-union violence: The Committee took note of the Government s statements (the number of murders of trade unionists and acts of violence had decreased, adopted mea-sures for the protection of trade unionists and trade union premises), and the information contained in the report of the Attorney-General (on indictments, detentions and sen-tences in relation to murders as well as on the new system of incrimination to increase the effectiveness of the inves-tigations in the framework of the fight against impunity).

Anti-union violence: The Committee “…once again urged the Government to guarantee the right to life and security, and to reinforce urgently the necessary institu-tions to put an end to the inadmissible situation of impu-nity which constituted a great obstacle to the exercise of the rights guaranteed by the Convention [No. 87].”

Anti-union violence: “The Committee requested the reinforcement of the protection measures for trade union-ists and of the ILO Technical Cooperation Programme.”

Freedom Association: The Committee requested the Government to communicate information to the Commit-tee of Experts “… in relation to: the failure to respect trade union rights in the context of a large number of restructur-ings, privatizations, or mergers, particularly in the pubic sector among others; mass dismissals; other anti-union dismissals; the recourse to cooperatives which constituted hidden employment relationships and deprived workers of freedom of association and collective bargaining; the in-creasing recourse to collective accords with nonunionized workers and the slowness, complexity, malfunctioning, and partiality of judicial processes.”

Anti-union violence: “The Committee requested the Government to report on the number of cases of murders which had come to an end before the judicial instances and in which it had been possible to identify those responsible and punish those guilty so that the serious situation of im-punity could be contained.”

144

Freedom Association: “The Committee underlined the importance of having these objectives met through social dialogue and agreement and recalled that the technical as-sistance of the Office was at the Government s disposal.”

3.2. General Report.

3.2.1. 2006

CommentsSocial Dialogue: “[8] The Chair stated that, in view of

the above agreement which seeks to provide a concrete re-sponse to the suggestions made by the tripartite high-level visit decided by the Committee, which visited the country in October 2005, and to the comments of the Committee of Experts, the Officers had decided that the case of Colom-bia would not need to be discussed by the Committee this year. The Chair congratulated the tripartite delegation of Colombia on this historic agreement”.

Social Dialogue: “The Worker members welcomed the agreement concluded between the social partners and the Government of Colombia. They believed that this agree-ment would relaunch the social dialogue in the country and pointed out that this was an inspirational example of work carried out by various mechanisms of dialogue offered by the ILO and, in particular, of missions to the country.”

3.2.2. 2007

CommentsSocial Dialogue: The Worker members “… hoped that

the ILO would make every effort to ensure that the Tripar-tite Agreement was implemented effectively for the benefit of Colombian workers, so that the following year the Com-mittee would be able to examine the results of the high-level mission.”

145

4. Committee of Experts on the Application of Conven-tions and Recommendations

4.1. Individual Observation about Colombia

Convention Comments

87

Anti-union violence: “…the Committee emphasizes once again that the guarantees set out in the international labour Conventions, in particular those relating to freedom of association, can only be effective if the civil and political rights enshrined in the Universal Declaration of Human Rights and other international instruments are genuinely recognized and protected”

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions: -. the prohibition of federations and confederations from calling strikes (section 417(i) of the Labour Code); - the prohibition of strikes, not only in essential services in the strict sense of the term (namely the interruption of which would endanger the life, personal safety or health of the whole or part of the population) but also in a wide 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 of dismissing trade union officers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), including when the strike is unlawful due to requirements which are contrary to the principles of freedom of association; and - the power of the Minister of Labour to refer a dispute to arbitration when a strike lasts longer than

87

Implementation in law and practice: “…the Committee expresses the firm hope that the draft laws in question (legislative texts were prepared during the direct contacts mission carried out in February 2000) will be placed before Congress in the very near future and that the abovementioned draft legislation will be adopted.”

98

Freedom Association (Collective Bargaining): About the Colombian trade unions comments related to non-compliance with collective agreements (municipality of Ibagué, Coltejer, GM Colmotores) “…the Committee wishes to emphasize that both employers and trade unions must negotiate in good faith, making an effort to reach an agreement, and that once such agreements have been concluded they must be binding on both parties.”

146

Convention Comments

98

Freedom Association: About the dismissal of trade union leader (municipality of Monteria and Flota Mercante cases) “…the Committee observes that the dismissal of trade union leaders on the grounds of their function or legitimate trade union activities constitutes a serious violation of Article 1 of the Convention. [No. 98]”

98

Freedom Association (Collective Bargaining): The Committee emphasize that “…the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, and that direct negotiations with workers must not prejudice or weaken the position of trade unions, nor weaken the impact of collective agreements that have been concluded. The Committee requests the Government to ensure that these principles are respected and to inform it of any measures adopted in this respect.”

98

Freedom Association (Collective Bargaining): “The Committee requests the Government to take measures to guarantee the right of public employees and officials to collective bargaining. The Committee requests the Government to provide information in its next report on any measure taken in this respect.”.

4.1.2. 2003

Convention Comments

87

Anti-union violence: “the Committee urges the Government to take the necessary steps to end this situation of insecurity and allow workers’ and employers’ organizations to enjoy in full the rights granted to them by the Convention [No. 87], and to establish and strengthen the institutions needed to put an end to the intolerable situation of impunity prevailing in the country, which is a serious obstacle to the free exercise of trade union rights.”

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions -. the prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code);- the prohibition on strikes not only 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) but also in a wide 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

147

Convention Comments

87

1955; 1593 of 1959; 1167 of 1963; 57 and 534 of 1967) and the possibility of dismissing trade union officers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even when the unlawfulness of the strike rests on requirements which are contrary to the principles of freedom of association; and - the power of the Minister of Labour to refer a dispute to arbitration when a strike lasts longer than

87

Freedom Association: “The Committee accordingly urges the Government to take steps to bring its legislation into full conformity with the provisions of the Convention [No. 87], for instance by adopting the preliminary draft legislation prepared during the direct contacts mission in February 2000.”

98

ILO procedures The Committee asks the Government to send its observations thereon (the comments sent by International Confederation of Free Trade Unions (ICFTU) and the Colombian Workers’ Confederation (CTC) on the application of the Convention [No. 98]), with its next report.

4.1.2. 2004

Convention Comments

87

Anti-union violence and Freedom Association: The Committee notes of Report Government (January 15 of 2003) “… the Work Plan of the Inter-Institutional Committee for the Prevention and Protection of the Human Rights of Workers was adopted and that its main objective is to promote, encourage and adopt all such measures as may strengthen freedom of association. The Government also states that the special committee to promote investigations into human rights violations is to be strengthened.”

87

Anti-union violence: The Committee “…requesting the Government to strengthen the relevant institutions still further in order to put an end to the intolerable situation of impunity, which constitutes a serious obstacle to the free exercise of the trade union rights protected by the Convention, so as to punish all those responsible effectively.

148

Convention Comments

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions: - the prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code); - the prohibition on strikes not only 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) but also in a wide 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 of dismissing trade union officers who have intervened or participated in an unlawful strike (section 450(2) of the Labour Code), even when the unlawfulness of the strike rests on requirements which are contrary to the principles of freedom of association; and - 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).

87

Social Dialogue: “The Committee requests the Government to provide information on the progress made by the Consultative Commission on Labour and Social Policies, which, according to information supplied by the Government to the Conference Committee on the Application of Standards at its meeting of 2002, had been seized of issues pertaining to the application of the Convention [No. 87].”

87

Implementation in law and practice: “The Committee requests the Government to take steps to have the legislation amended without delay and recalls in this connection the preliminary draft legislation prepared during the direct contacts mission in February 2000.”

98

Freedom Association (Collective Bargaining): “The Committee requests the Government to provide information in its next report on any measure adopted in this respect (recognition to the right of public employees who are not engaged in the administration of the State to collective bargaining) and hopes that it will be able to note tangible progress in the near future.”

14�

Convention Comments

98

Freedom Association (Collective Bargaining): The Committee recalls again that “…the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, and that direct negotiations with workers should only be possible in the absence of trade union organizations. The Committee once again requests the Government to provide information on any measure adopted in this respect and on the total number of collective agreements and collective accords, and the number of workers covered by them.”

Convention Comments

87

Anti-union violence: The committee “… once again urges the Government to guarantee the right to life and security, and to reinforce urgently the necessary institutions in order to put an end to the situation of impunity, which is a serious obstacle to the exercise of the trade union rights guaranteed by the Convention. The Committee notes that the climate prevailing in the country is not favorable to the exercise and development of trade union activities more generally.”

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions: The prohibition on the calling of strikes by federations and confederations (section 417(i) of the Labour Code).. “…the Committee considers that higher level organizations should be able to have recourse to strike action in cases of disagreement with the Government’s social and economic policies. The Committee therefore requests the Government to take measures to amend section 417(i) of the Labour Code.”

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions:The prohibition on strikes, not only in essential services in the strict sense of the term, but also in a wide 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 of dismissing trade union officers who have intervened or participated

4.1.2. 2005

150

Convention Comments

87

in an unlawful strike (section 450(2) of the Labour Code), even where the unlawfulness of the strike rests on requirements which are contrary to the principles of freedom of association. “… the Committee therefore considers that essential services are only those the interruption of which would endanger the life, personal safety or health or the whole or part of the population (…) the Committee requests the Government to take measures to amend the legislative provisions in question and to provide information in its next report on any measure adopted in this respect.”

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions: -. 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 Government Report said that it have been used on very few occasions and 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 (…)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.”

87

Freedom Association: “The Committee therefore requests the Government to provide further information on the practical application of the registration procedure and, in particular, the number of cases where registration has been denied, the reasons for such refusal, whether the refusal was appealed and the final outcome of the appeal.”

98ILO procedures: “The Committee requests the Government to communicate its observations on these comments (CUT, CGTD, CTC, CIOSL comments) in its next report.”

4.1.2. 2006

Convention Comments

87

Anti-union violence: “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..”

151

Convention Comments

87

Anti-union violence: “…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.”

87

Anti-union violence: “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.”

87

Freedom Association: About contractual arrangements to cover employment relationships, “The Committee therefore requests the Government to take the necessary measures to ensure that full effect is given to Article 2 of the Convention [No. 87] so that all workers without distinction whatsoever enjoy the right to establish and join organizations.

87

Freedom Association: The Committee “…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.”

87

Freedom Association: “…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. [No. 87].”

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions: “…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.

152

Convention Comments

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions: ( 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.”

87

Freedom Association (right to strike): The Committee recalls that it has been commenting on certain legislative provisions: “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, (…)the Committee requests the Government to take measures to repeal this provision of the Labour Code”

98

Freedom Association (collective bargaining): “…the Committee regrets that the Government has not yet taken legislative measures to ensure the right to collective bargaining of public employees. The Committee requests the Government to provide information in its next report on any measures adopted in this respect and hopes that it will be able to note tangible progress in the near future.”

98

Freedom Association (collective bargaining): “…the Committee requests the Government to take measures to guarantee that collective accords are not used to undermine the position of trade union organizations and the possibility in practice to conclude collective agreements with them, and to provide information on the total number of collective agreements and collective accords and the respective number of workers covered by them.”

153

Convention Comments

98

Freedom Association (collective bargaining): “The Committee emphasizes the convenience of governments engaging in meaningful consultations with trade union organizations with a view to discussing the impact of restructuring programmes on the employment and working conditions of employees.”

98Social Dialogue: The Committee invite to Standing Advisory Committee on Wage Policies “…to establish a joint agenda to discuss matters relating to the Convention [No. 98].”

Convention Comments

87

Anti-union violence: “The Committee recalls the interdependence between civil liberties and trade union rights and emphasizes that a truly free and independent trade union movement can only develop in a climate of respect for fundamental human rights (…) and that employers‟ and workers‟ organizations can only exercise their activities freely and meaningfully in a climate that is free from violence. The Committee requests the Government to provide its observations in this respect.”

87

Social Dialogue: “…the Committee requests the organizations concerned and the Government to examine the possibility of finding a solution to the dispute in the context of the recently concluded Tripartite Agreement, which includes a commitment to convene the National Commission on Wages and Labour Policies. [Situation Social Dialogue: “The Committee hopes that the recently adopted Tripartite Agreement will be implemented in the near future and that, in the context of this Agreement, serious problems in respect of the freedom of association which the Committee has been raising for numerous years will be examined.”

98

Freedom Association (right to strike): “The Committee proposes, in accordance with the regular reporting cycle, to examine at its next session in November-December 2007 all the matters relating to the legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).” (Issues: legislation and the application of the Convention in practice, the submission of collective disputes to compulsory arbitration by the Ministry of Social Protection, the power of arbitration boards to revise

4.1.2. 2007

154

Convention Comments

98collective agreements and the exclusion of many workers from the scope of collective agreements due to the increase in the use of civil contracts).

151

Freedom Association (collective bargaining): The committee notes of violation of collective agreement for compel workers in the public sector to undergo once again merit competitions in order to be confirmed in their posts [comments by SINSPUBLIC and CUT], and requests the Government to provide its observations on this subject.

151

Freedom Association (collective bargaining): The Committee notes comments according to the Substantive Labour Code does not allow trade unions of public employees to engage in collective bargaining and request the Government adopt the necessary measures to regulate the right of collective bargaining of public employees.

154

Freedom Association (collective bargaining): “… the Committee requests the Government, in the light of the ruling of the Constitutional Court [No. C-1234, of 29 November 2005], to adopt the necessary measures to regulate the right of collective bargaining of public employees in accordance with the Convention [No. 154].

154

Social Dialogue: The Committee notes that Tripartite Agreement on the Right of Association and Democracy includes the undertaking to convene the National Commission on Wages and Labour Policies.

Date post:	04-Feb-2016
Category:	Documents
Upload:	raul-paris
View:	10 times
Download:	0 times

Labor Rights And Freedom Of Association In Colombia

Documents