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Collective Bargaining Convention, 1981 (No. 154) - Colombia (RATIFICATION: 2000)

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The Committee takes note of the joint observations of the Confederation of Workers of Colombia (CTC), the General Confederation of Labour (CGT) and the Single Confederation of Workers of Colombia (CUT) and of the observations of the National Employers’ Association of Colombia (ANDI) received on 1 September 2023.
With regard to its previous comments on collective bargaining in the private sector and the subjects covered by collective bargaining, the Committee refers to its comments concerning the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
Collective bargaining in the public administration. In the context of its observation concerning Convention No. 98, the Committee noted with satisfaction the signing, on 23 June 2023, of a new State Agreement with 35 trade union organizations for the benefit of some 1,300,000 public sector workers. The Committee notes that the Government states in particular that: (i) the agreement contains benefits for the strengthening of collective rights, well-being at work, a better quality of life for the country’s public employees, benefits for administrative careers, gender mainstreaming, respect for freedom of association and labour policy ; (ii) the Government undertakes to submit a draft amendment to Law no. 2094 of 2021 to include discrimination, persecution, violence and any other anti-union behaviour against trade union leaders as punishable behaviour; and (iii) by Resolution no. 2363 of 19 July 2023, the agreements reached in the 2023–25 collective agreement between the trade union organizations and the Ministry of Labour were adopted.
The Committee also notes the comments made by the central unions that future negotiations should respect the terms of Decrees No. 160 of 2014 and No. 1072 of 2015, given that the negotiating table was set up two months after the submission of the list of demands, and that measures should be taken to improve the methodology for conducting negotiations. The Committee also notes that the central unions state: (i) that there are no legal mechanisms for enforcing collective agreements between workers’ organizations and State entities; (ii) that they have been obliged to resort to mechanisms that transform the agreement into an administrative act in order to enforce it; and (iii) that it is at local level that they encounter the greatest difficulties in enforcing collective agreements.
The Committee requests the Government to provide information on the remedies available to enforce collective agreements between public employees and public administration bodies. The Committee also encourages the Government to continue the dialogue with the central unions on the improvements to be made to the methods of negotiation in the public administration.

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The Committee notes the observations from the Union of Cali Municipal Enterprise Workers (SINTRAEMCALI), the General Confederation of Labour (CGT), the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers (CUT), received between 4 June and 1 September 2014, referring to issues already discussed by the Committee and citing difficulties relating to the application of the Convention in practice in both the public and private sectors. The Committee notes the Government’s reply to the 2011 observations of the CUT, the 2012 observations of the Trade Union Association of Public Employees of the Ministry of Defence, Armed Forces and Associated Agencies (ASODEFENSA), the 2013 observations of the World Federation of Trade Unions (WFTU), of the 2013 observations of the National Association of the Employees of the Bank of the Republic (ANEBRE), and the 2014 observations of SINTRAEMCALI.
Article 5 of the Convention. Promotion of collective bargaining. The Committee notes the adoption of Decree No. 160 of 2014 concerning procedures for bargaining and settlement of disputes with public employees’ organizations, and the signature of a substantial number of collective agreements in the public administration, a subject that the Committee raises in its examination of the application of the Labour Relations (Public Service) Convention, 1978 (No. 151). The Committee also notes that the Government refers to the adoption, further to tripartite consultations in the Standing Committee for Dialogue on Wage and Labour Policies, of Decree No. 089 of 2014 regulating section 374(2) and (3) of the Labour Code with a view to promoting collective bargaining through unified or consolidated bargaining.
Impact of collective accords with non-unionized workers on the promotion of collective bargaining. In its observations of 2011 and 2014, the CUT stated that: (i) collective accords signed with non-unionized workers are widely used to discourage the exercise of freedom of association and collective bargaining; (ii) statistics show the negative effect of collective accords on trade union membership; (iii) in practice collective accords are often used to set a ceiling in advance on economic benefits due from the employer, thereby truncating the collective bargaining process; (iv) 203 collective accords were adopted in 2013; and (v) despite numerous complaints, the authorities have not imposed any criminal penalties so far in relation to the unlawful use of collective accords. The Committee notes that the Government reiterates in its report that: (i) where a collective accord and a collective agreement coexist in the same enterprise, the employer must respect the right to equality and may not use either of the two instruments to offer prerogatives or concessions improving the conditions of some workers to the detriment of others; (ii) Act No. 1453 of 2011 establishes penalties for anyone concluding collective accords that, overall, grant better conditions than those established in collective agreements; and (iii) labour inspectors have been trained, with ILO support, in the handling of disputes relating to collective accords. While noting the Government’s indications, the Committee recalls that, in line with the obligation to promote collective bargaining under the terms of the Convention, collective accords with non-unionized workers should only be possible in the absence of representative trade unions. The Committee therefore again requests the Government to take the necessary measures in this respect, in consultation with the most representative workers’ and employers’ organizations, and to provide information on any developments. The Committee also requests the Government to provide information on the respective numbers of collective agreements and collective accords adopted in the country.
Article 5(b). Subjects covered by collective bargaining. Exclusion of pensions. The Committee notes that the CUT, CTC, SINTRAEMCALI and ANEBRE denounce the persistent exclusion of the subject of pensions from the sphere of collective bargaining, further to the reform of article 48 of the Constitution of Colombia by Legislative Act No. 01 of 2005. The Committee notes the Government’s indication in its report that: (i) Legislative Act No. 01 of 2005 does not compromise the essence of collective bargaining because it deals with matters other than the regulation of conditions of work or employment or worker/employer relations; (ii) the constitutional reform of 2005 guarantees the equity and financial sustainability of the general pension system; and (iii) the recent ruling of the Plenary Chamber of the Constitutional Court (No. 555 of 24 July 2014) confirms that the clauses in collective agreements containing provisions relating to pensions expired on 31 July 2010, with due observance of the acquired rights of persons who fulfilled the requirements for access to the pension established by the agreement at the time of entry into force of the reform, and taking due account of the legitimate expectations of workers who complied with those requirements as at 31 July 2010. The Committee requests the Government to indicate whether the aforementioned ruling permits agreements with trade unions holding collective agreements with clauses relating to pensions before 31 July 2010 in order to accommodate the situation of workers who had fulfilled only part of the requirements for access to the pension established by the agreement, especially where the contributions paid were greater than those in the current scheme.
The Committee recalls that the establishment by law of a general mandatory pension scheme is compatible with collective bargaining by means of a complementary system. In view of the above, the Committee requests the Government to take the necessary measures, in consultation with the representative social partners, to ensure that parties to collective bargaining are not prohibited, in both the public and private sectors, from improving pensions through complementary benefits, when budgetary conditions allow it for public enterprises and institutions. The Committee requests the Government to provide information on any developments in this respect and reminds it that it may avail itself of technical assistance from the Office if it wishes.
Article 5(e). Bodies and procedures for the settlement of disputes and promotion of collective bargaining. The Committee notes that the trade union federations denounce the excessive slowness of the functioning of the arbitration tribunals as a result of delaying tactics on the part of certain employers and the lack of an adequate response to such practices from the public authorities, which is seriously affecting the exercise of the right to collective bargaining. Observing that this subject is under discussion in the Standing Committee for Dialogue on Wage and Labour Policies, the Committee requests the Government to take the necessary measures to ensure that the social dialogue in progress can solve the problems indicated and to keep it informed of any developments in this respect. The Committee also requests the Government, in the context of social dialogue, to examine the numerous cases of obstruction of collective bargaining referred to in the observations of the trade union federations.
Coverage of collective bargaining in the private sector. The Committee requests the Government to send its comments on the statement made by the CUT that less than 1 per cent of the active population is covered by a collective agreement and to provide information on the measures taken to promote collective bargaining in the private sector.

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The Committee notes the comments of 30 August 2011 from the Single Confederation of Workers (CUT) and the Confederation of Workers of Colombia (CTC). It requests the Government to send its observations thereon.
The Committee also takes note of earlier comments made by the National Federation of State Service Workers (FENALTRASE–CUT), the National Federation of Public Servants (FENASER–CTC), the National Union of State and Public Service Workers (UNETE–CGT), the National Union of State and Public Service Workers of Colombia (UTRADEC–CGT), the CUT and the Coordinator of Andean Trade Union Confederations (CCSA). The Committee is addressing the main issues raised by these organizations in its comments on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
Lastly, the Committee notes the comments of 10 November 2010 from the National Association of Telephone, Communication and Allied Technicians (ATELCA). The Committee observes that they refer to matters under examination by the Committee on Freedom of Association (Case No. 2434).

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The Committee notes the comments made by the Single Confederation of Workers (CUT), the General Confederation of Labour (CGT) and the Confederation of Workers of Colombia (CTC). The Committee notes in particular the indication by the CUT that, despite the existence of the National Commission for Dialogue on Wage and Labour Policies, recent legislative changes were not subject to consultations with the social partners in that Commission. The Committee requests the Government to provide its observations on this matter.

The Committee notes the comments made by the National Association of Telephone, Communication and Allied Technicians (ATELCA) and the Government’s reply. The Committee refers in this respect to its comments on the application of Convention No. 98.

The Committee notes with satisfaction the adoption of Decree No. 535 of 24 February 2009 on collective bargaining in the public sector. The Committee notes the comments made by the CUT, CGT and CTC in this respect. The Committee refers in this regard to its comments on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

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The Committee notes the joint comments made by the Single Confederation of Workers (CUT), the General Confederation of Labour (CGT), the Confederation of Workers of Colombia (CTC) and the Confederation of Pensioners of Colombia (CPC), dated 16 June 2006, according to which section 416 of the Substantive Labour Code does not allow trade unions of public employees to engage in collective bargaining. They add that ruling No. C-1234 of the Constitutional Court, of 29 November 2005, found that “the legislator shall regulate the procedure, in due time and in dialogue, in so far as possible, with the trade union organizations of public employees, governing the right of such employees to engage in collective bargaining, in accordance with Article 55 of the Constitution and ILO Conventions Nos. 151 and 154 duly ratified by the country and which form part of domestic law under the terms of Acts Nos. 411 of 1998 and 524 of 1999, respectively”. Under these circumstances the Committee requests the Government, in the light of the ruling of the Constitutional Court, to adopt the necessary measures to regulate the right of collective bargaining of public employees in accordance with the Convention.

Finally, the Committee notes the Tripartite Agreement on the Right of Association and Democracy, which includes the undertaking to convene the National Commission on Wages and Labour Policies, concluded by the Government and the representatives of workers and employers in Geneva in the context of the Committee on the Application of Standards of the International Labour Conference on 1 June 2006.

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The Committee notes the Government’s report.

The Committee recalls that in its previous direct requests it emphasized that, by virtue of Article 1 of the Convention, employees in the public service should have the right to collective bargaining, although special modalities of application may be determined.

The Committee notes the Government’s indications that: (1) there are two categories in the public sector, namely public employees and officials; both are able to organize in unions, but only officials are able to engage in the collective negotiation of their terms and conditions of employment. Public employees are not legally allowed to establish a process of negotiation through the presentation of a list of demands; (2) the Supreme Court of Justice has found the restriction on the right to collective bargaining of trade unions of public employees to be justified and that this restriction is not contrary to ILO Conventions Nos. 151 and 154, and it has found that section 416 of the Substantive Labour Code, which restricts the right of collective bargaining of unions of public employees, by prohibiting them to submit lists of demands relating to their conditions and conclude collective agreements, is in accordance with the Political Constitution; (3) for the purposes of the application of the Convention, account should be taken of the recognition in law and case law of the right to collective bargaining of the so-called officials who, as workers in the service of the State, are fully guaranteed their right to collective bargaining; (4) the differentiation between these two categories of state servants corresponds to a legal tradition, an institutional system that is a product of the conditions in which the public administration has developed and, in the case of Colombia, is enshrined in the Political Constitution in its attribution of specific competences to the Executive and to democratically elected bodies in terms of the determination of the system of wages and benefits for one of these categories of public servants, namely public employees; and (5) the public employees have the right, according to the Supreme Court, to seek and find concerted solutions in case of dispute but cannot affect in any way the power of the authorities to unilaterally determine the conditions of employment, that is to say, the relevant executive authority or the legislature have the last word. The Committee recalls, however, that by virtue of section 414 of the Substantive Labour Code the unions of public employees can present to the respective heads of the administration respectful notes containing claims which concern all their members in general, or complaints relative to the treatment reserved to any one of them in particular, or suggestions aimed at improving the administrative organization or methods of work.

The Committee recalls that Article 1, paragraph 3, of the Convention (which covers collective bargaining) provides that, as regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice. The Committee accordingly considers that the exclusion of public employees from the right of collective bargaining is not in conformity with the Convention. The Committee therefore requests the Government to take the necessary measures to bring the legislation into conformity with the Convention and to guarantee the right of public employees to collective bargaining.

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The Committee notes that it has not yet received the Government’s report or its reply to the comments made by the Confederation of Colombian Workers (CTC) on the denial of the right to collective bargaining for public employees as a result of a decision by the Supreme Court in June 2001. The Committee requests the Government to send its detailed report based on the corresponding report form approved by the Governing Body, together with the relevant legislation.

The Committee notes the communication dated 29 August 2003 of the World Confederation of Labour (WCL) on the application of the Convention concerning the same issue raised by the CTC. The Committee notes that this issue is addressed in its observation on the application of Convention No. 98.

The Committee once again reiterates that, by virtue of Article 1 of the Convention, employees in the public service should have the right to collective bargaining, although special modalities of application may be fixed. The Committee once again requests the Government to adopt measures to bring the legislation into full conformity with the provisions of the Convention.

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The Committee takes note of the first report sent by the Government. It observes that the report is not a full one and therefore asks the Government to send a new and detailed report based on the corresponding report form approved by the Governing Body, together with the relevant legislation in force.

The Committee nonetheless notes that, according to the Government, one category of public servants (those referred to as "public employees") do not enjoy the right to collective bargaining and may only submit "respectful demands" containing requests that concern all their members. The Committee recalls that under Article 1 of the Convention, employees of the public administration must enjoy this right, it being understood that special modalities of application of the Convention may be fixed. That being so, the Committee requests the Government to take steps to bring its legislation fully into conformity with the relevant provisions of the Convention.

Lastly, the Committee notes the observation of 21 June 2002 of the Confederation of Colombian Workers (CTC) commenting on the application of the Convention. The Committee requests the Government to send its comments in this respect as regards the application of the Convention.

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