Observación (CEACR) - Adopción: 1990, Publicación: 77ª reunión CIT (1990)

The Committee notes the Government's reports and the information supplied by a Government representative to the Conference Committee in 1989.

The Committee notes the assurances given by the Government in its last report concerning the creation of a special committee to examine the whole of the labour legislation, which is now outdated in the light of its comments, in order to bring the legislation into conformity with ILO Conventions. It also notes the creation of a national labour council, a tripartite body that is to play an advisory role in the planned reform of the labour legislation (Decree No. 2393 of 20 October 1989).

The report indicates, however, that an in-depth reform requires detailed examination and analysis within the context of the political, economic and social situation of the country.

In this connection, the Committee recalls the divergencies existing between the national legislation and the Convention:

(1) The establishment of workers' organisations (Article 2 of the Convention):

- the requirement of 75 per cent of members to be Colombian to establish a trade union, whereas it should be possible for workers to establish organisations of their own choosing without distinctions on grounds such as nationality (section 384 of the Labour Code).

(2) Interference in the internal administration of trade unions (Article 3 of the Convention):

(a) By-laws, financing, administration and meetings:

- ministerial approval of amendments to the rules of first-level unions, federations and confederations (sections 369, 370 and 425 of the Labour Code and section 15 of Resolution No. 4 of 1952);

- regulation by Resolution No. 4 of 1952 of questions that should be governed by the rules of the unions rather than by the law (quorum of the general assembly, composition of the executive bodies, electoral procedure, etc.);

- supervision of the internal management and meetings of unions by public servants (section 486 of the Labour Code and section 1 of Decree No. 672 of 1956), strict rules for trade union meetings (Decree No. 2655 of 1954) and presence of authorities at general assemblies convened to vote the calling of a strike (section 444(2) of the Labour Code).

(b) Election and suspension of trade union officers:

- the requirement that persons be Colombian for election to trade union office (section 384 of the Labour Code and section 18(a) of Resolution No. 4 of 1952);

- the election of trade union officers to be submitted for approval by the administrative authorities (section 21 of Resolution No. 4 of 1952 and sections 10 to 13 of Decree No. 1469 of 1978);

- the suspension, with loss of trade union rights, of trade union officers who have been responsible for the dissolution of their unions (section 380(2)(b) and (4) of the Labour Code);

- the requirement that persons belong to the trade or occupation in order to be considered eligible for election to trade union office (sections 388(1)(c) and 432(2) of the Labour Code; section 18(c) of Resolution No. 4 of 1952 for first-level trade unions; and section 422(1)(c) of the Labour Code for federations).

(3) Right of trade unions to further and defend the interests of the workers (Article 3 of the Convention):

- prohibition on trade unions from taking part in political matters (sections 12 and 50(a) of Resolution No. 4 of 1952; section 16 of Decree No. 2655 of 1954; and section 379(a) of the Labour Code);

- prohibition on trade unions from holding meetings on political matters (section 12 of Resolution No. 4 of 1952);

- prohibition on federations and confederations from calling a strike (section 417(1) of the Labour Code);

- prohibition of strikes not only in the essential services in the strict sense of the term, but also in a very wide range of public services which are not necessarily essential (section 430 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);

- the power of the Minister to terminate a dispute lasting more than 40 days and the power of the President to terminate a strike which is affecting the interests of the national economy and to submit disputes to compulsory arbitration (Decree No. 939 of 1966, as amended by Act No. 48 of 1968, and section 4 of Act No. 48 of 1968);

- the prohibition of strikes combined with administrative penalties (the suspension of the legal personality of trade unions) and sentences of imprisonment in cases where the state of emergency has been declared (Decree No. 2004 of 1977, Decrees Nos. 2200 and 2201 of October 1988);

- the automatic dismissal of trade union officers who have intervened or participated in an illegal strike (section 450(2) of the Labour Code).

(4) Suspension and dissolution by administrative authority (Article 4 of the Convention):

- the withdrawal or suspension by administrative authority of the legal personality of a trade union in the event of violation of the provisions respecting trade unions (section 380 of the Labour Code) or in the event of a strike that is declared illegal (section 450(2) of the Labour Code).

In its report and at the Conference Committee, the Government supplied information on a number of points:

1. As regards the procedure for granting legal personality to trade unions and for approving their rules, a matter on which the Workers' Central Organisation of Colombia (CUT) submitted comments, the Government once again indicates that the authorities place no obstacle on the establishment of trade unions. On the contrary, over the past three years, two new federations have been registered, legal personality has been recognised for 359 trade unions and 294 cases of amended rules have been approved. The Government also reports its intention to speed up the processes in consultation with trade union leaders.

The Committee, in the same way as the Committee on Freedom of Association, which, in its examination of Case No. 1434 (259th Report, approved by the Governing Body at its November 1988 Session), noted many cases of the refusal of applications for the recognition of legal personality and long delays in the process, once again requests the Government to take practical measures to speed up the procedure and reduce the formalities.

2. The Committee notes that a Bill is to be submitted in the near future to the Congress of the Republic to amend section 379 of the Labour Code, which prohibits trade unions from intervening in political matters. It requests the Government to supply information on the development of the situation in this connection.

3. The Committee takes due note of the repeal of Decrees Nos. 2200 and 2201 of October 1988, which prohibited strike action under penalty of imprisonment.

The Committee notes that during a state of emergency the authorities avail themselves of such measures, as was the case in 1977 with the adoption of Decree No. 2004, which was repealed by the lifting of the state of emergency in 1982 (Decree No. 1674 of 1982), in 1985 and most recently in 1988, although Colombia has been under a state of emergency since 1984 (Decree No. 1038 of 1984).

The Committee wishes to draw the Government's attention to the fact that the prohibition of strikes constitutes a major restriction of one of the essential means that should be available to workers' organisations to defend their interests, that such measures should only be introduced in a situation of acute national crisis and then only for a limited period, and that penalties of imprisonment should not be imposed in the case of peaceful strikes (paragraphs 206 and 223 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

4. As regards the compulsory arbitration machinery, the Government refers to Decree No. 939 of 1966, as amended by Act No. 48 of 1968, under which at any time during a strike a dispute may be referred to compulsory arbitration where the majority of the workers so decide after a ballot has been taken either at the decision of the workers or the Minister. The Committee recalls that by virtue of section 2 of the above Decree (which was not repealed by Act No. 48 of 1968) the Minister is empowered, at his own initiative, to terminate a dispute that has lasted more than 40 days by referring it to compulsory arbitration, and that this power is also conferred upon the President in certain circumstances under section 4 of Act No. 48 of 1968.

The Committee recalls once again that these provisions, which empower the authorities to terminate a strike by referring a dispute to compulsory arbitration, restrict the exercise of the right to strike. In the opinion of the Committee, the principle whereby the right to strike may be limited or prohibited should be confined to public servants acting in their capacity as agents of the public authority, to essential services - whether they are public, semi-public or private (i.e. those whose interruption would endanger the life, personal safety or health of the whole or part of the population) - or in a situation of acute national crisis, and then only for a limited period.

The Committee therefore requests the Government to take measures to confine the possibilities of resorting to compulsory arbitration to the circumstances mentioned above.

5. As regards the withdrawal or suspension by administrative authority of the legal personality of a trade union, on which the CUT has also commented, the Committee recalls that this measure may be imposed either in the event of continued violations of the provisions respecting trade unions (section 380(c) of the Code), or in the event of a strike being declared illegal (section 450), or under Decrees adopted during a state of emergency as a result of participating in strikes that have been declared illegal, the most recent of which date from October 1988.

The Committee notes that Decrees Nos. 2200 and 2201 of October 1988 have been repealed and notes the Government's statement that even in a state of emergency a trade union whose legal personality has been suspended can appeal through administrative channels, which has the effect of suspending the measures, or through the disputes procedure which may be accompanied by an appeal requesting the temporary suspension of the decision.

However, in the opinion of the Committee, it does not appear from the provisions of the Code of Labour Procedure respecting appeals relating to strikes (sections 121 to 129) that an appeal against a decision to suspend the legal personality of a union due to an illegal strike has the effect of suspending such a decision. The Committee wishes to draw the Government's attention once again to paragraph 232 of its 1983 General Survey on Freedom of Association and Collective Bargaining where it states that the proper implementation of the principle set out in Article 4 of the Convention implies more than the existence of a legislative provision providing for the possibility of appealing against such decisions to the courts; decisions should not be permitted to take effect until a specified period of time has elapsed without any appeal being lodged or until they have been confirmed by the judicial authority. However, even a right of appeal to the courts does not always constitute a sufficient guarantee since, if the authority possesses discretionary power in reaching its decision, the judges can do no more than verify whether the law has been correctly applied. The judges should therefore be in a position to examine the substance of the case as well as the grounds for the dissolution or suspension of an organisation.

The Committee once again requests the Government to eliminate from the legislation any possibility of suspending or dissolving a trade union organisation by administrative authority, or at least to provide that the administrative decision does not take effect until the judicial authority has ruled on any appeal that may be made, even when such a decision has been taken in a situation of emergency. The Committee also notes the information supplied by the Government to the Committee on Freedom of Association (270th Report, Case No. 1477, approved by the Governing Body at its February-March 1990 Session) to the effect that the trade union organisations that had been subject to a suspension decision under section 1 of Decree No. 2201 of October 1988 recovered their legal personality when the penalties imposed through suspension expired in December 1989.

The Committee trusts that the revision of the legislation that has been announced will make it possible to achieve firm results as regards all the points that have been raised, and it requests the Government to supply detailed information on the work of the above special committee and the measures that have been taken or are envisaged in this respect. It recalls that the ILO is at the Government's disposal to assist it in its task of revising the legislation.