Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 387, Octobre 2018

1. 316. The complaint is contained in a communication from the Single Confederation of Workers of Colombia (CUT) dated 10 June 2015.
2. 317. The Government provided its observations in a communication dated 25 May 2016.
3. 318. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 319. In its communication dated 10 June 2015, the complainant organization alleges, first, that the conclusion of several labour accords with non-unionized workers violates the rights to freedom of association and collective bargaining of workers and their organizations and, second, that the country does not have adequate protection mechanisms against anti-union discrimination and other anti-union acts. Regarding the complaint of the anti-union nature of labour accords concluded with non-unionized workers, the CUT first emphasizes that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has on several occasions requested the Government of Colombia to ensure that such agreements are possible only in the absence of trade unions, in order to avoid cases of anti-union discrimination. The complainant organization emphasizes that, similarly, the Committee on Freedom of Association has on several occasions requested the Government to take measures to prevent labour accords with non-unionized workers being used to the detriment of freedom of association and the promotion of collective bargaining and to ensure that such accords are possible only in the absence of trade unions. Specifically, the complainant organization alleges that, on 15 May and 3 December 2014, it lodged 34 administrative labour complaints regarding cases of anti-union use of labour accords, in relation to which, as of the date of submission of the present complaint, none of the investigations have been completed and no inspections have even been conducted by the authorities and, consequently, no penalties have been imposed. The CUT adds that many of the trade unions directly affected by the aforementioned 34 cases of anti-union use of labour accords have filed criminal complaints citing a violation of article 200 of the Penal Code, but, to date, no proceedings have been initiated, let alone penalties imposed.
2. 320. The complainant organization states that, in the aforementioned cases, the anti-union nature of the use of labour accords is characterized by: (i) the increased or improved benefits contained in the accord in comparison to the collective agreement; (ii) the point at which the accord emerges, either because it was drawn up days after the establishment of the trade union to prevent the union from gaining a majority or because the accord was developed during the negotiation of the collective agreement with the trade union in order to ensure that the company has control over the negotiations and that working conditions are decided unilaterally; and (iii) the employer’s unilateral development and adoption of the accord, violating the minimum requirements set out in the Substantive Labour Code to ensure that accords are the result of free and voluntary negotiation. The content of the 34 administrative labour complaints is summarized below by the complainant organization.
   • – Regarding the administrative labour complaint of the National Union of Workers of Family Compensation Funds (SINALTRACAF) against FENALCO-ANDI-CONFENALCO (Case No. 1), the CUT alleges that: (i) on 11 August 2013, only two days after the conclusion of the collective agreement with SINALTRACAF, the aforementioned companies signed a labour accord only applicable to non-unionized workers that contained more favourable benefits than the collective agreement; and (ii) the accord was adopted to prevent the trade union from gaining new members and to directly affect collective bargaining, thus allowing the company to unilaterally fix working conditions.
   • – Regarding the administrative labour complaint of the National Union of Transport Workers of Colombia against the company Compas SA (Case No. 2), the CUT alleges that: (i) on 17 August 2012, the same day on which the collective agreement was signed, the company established unilaterally and promoted via email a benefits plan for non-unionized workers that contained more favourable conditions than the collective agreement, including a bonus of 200,000 Colombian pesos (COP) for joining the plan; and (ii) the plan was adopted to prevent the trade union from gaining new members and to directly affect collective bargaining, thus allowing the company to unilaterally fix working conditions.
   • – Regarding the administrative labour complaint of the National Union of Employees of Avianca (SINTRAVA) against the company Avianca (Case No. 3), the CUT alleges that: (i) with a view to encouraging workers to give up their trade union membership, the company has used different methods to promote a voluntary benefits plan applicable to all non-unionized workers that offers better conditions than the collective agreement; and (ii) as a result of the promotion of the voluntary benefits plan, a significant number of members left the union.
   • – Regarding the administrative labour complaint of the National Trade Union of Workers in the Chemical and/or Pharmaceutical Industry of Colombia (SINTRAQUIM) against the company ABOCOL SA (Case No. 4), the CUT alleges that, in direct violation of the specific terms of the collective agreement signed on 28 March 2014, on 1 April 2014 the company established a non-statutory benefits policy in favour of non-unionized workers that impinges upon freedom of association and free and voluntary collective bargaining through the unilateral determination of working conditions.
   • – Regarding the administrative labour complaint of the Union of Workers of Fortox SA (SINTRAFORTOX) against the company Fortox SA (Case No. 5), the CUT alleges that: (i) the labour accord signed on 20 July 2012, soon after the presentation of a list of demands by the trade union, contains more favourable benefits than the collective agreement; (ii) all individual employment contracts contain a clause on signing the labour accord; and (iii) the existence and the promotion of the accord have succeeded in halting the process of joining the trade union.
   • – Regarding the administrative labour complaint of the National Union of Workers of Sodimac Colombia SA (SINTRASODIMAC) against the company Sodimac Colombia SA (Case No. 6), the CUT alleges that: (i) on 21 February 2013, only two weeks after the presentation of a list of demands, the company obligated workers to join a benefits plan; and (ii) the collective agreement signed one month later on 21 March 2013 contained the same benefits as the aforementioned unilateral plan – evidence that the company sought to thwart trade union activities and collective bargaining.
   • – Regarding the administrative labour complaint of the National Trade Union of the Food and Milk Industry (SINTRALIMENTICIA) against Noel Biscuit Company SA (Case No. 7), the CUT alleges that: (i) the company developed a labour accord that offers more favourable conditions than the collective agreement; (ii) as they did not have to pay trade union dues to enjoy those conditions and for fear that they would be dismissed if they did not join the company policy, many workers decided not to join the trade union; and (iii) the accord therefore impinges upon freedom of association and free and voluntary collective bargaining, through the unilateral determination of working conditions.
   • – Regarding the administrative labour complaint of SINTRAPULCAR against the paper company Papeles y Cartones SA – PAPELSA (Case No. 8), the CUT alleges that, after the signature of a collective agreement in February 2014, the company developed a benefits plan that grants improved working conditions to non-unionized workers, resulting in significant numbers of workers relinquishing their trade union membership.
   • – Regarding the administrative labour complaint of SINTRANUTRESA against the company Nutresa SAS (Case No. 9), the CUT alleges that: (i) between April 2012 and April 2014, the company deliberately delayed the collective bargaining process, necessitating the issuance of a labour inspection order in this respect; (ii) at the same time, the company unilaterally presented an accord to non-unionized workers which entered into force on 1 June 2013; and (iii) the company thus succeeded in significantly reducing trade union membership.
   • – Regarding the administrative labour complaint of SINTRAINDULECHE against the milk company Proleche SA (Case No. 10), the CUT alleges that the labour accord applicable to non-unionized workers that competes with the collective agreement was adopted without fulfilling the legal requirements of workers’ assembly, electing workers to negotiate said accord and direct settlement negotiation.
   • – Regarding the administrative labour complaint of the Medellín branch of the Union of Textile Industry Workers (SINTRATEXTIL) against the company Leonisa SA (Case No. 11), the CUT alleges that: (i) the company established a labour accord in 1992; (ii) in 1998, a collective agreement was signed, the content of which was identical to that of the labour accord; (iii) since 2002, the trade union has been attempting to obtain a revision of the collective agreement but has met with the company’s refusal to negotiate and has had to resort to arbitration tribunals; and (iv) meanwhile, the company renews the labour accord every two years with improved working conditions, thus succeeding in reducing the number of trade union members.
   • – Regarding the second administrative labour complaint of SINTRALIMENTICIA against Noel Biscuit Company SA (Case No. 12), the CUT alleges that: (i) the company adopted a labour accord in 2011 that provides for greater benefits than the collective agreement; and (ii) as a result, 140 workers have relinquished their trade union membership.
   • – Regarding the administrative labour complaint of the National Union of Workers in the Weaving, Textiles, Clothing, Synthetic and Natural Fibres and Related Industries (SINALTRADIHITEXCO) against the textile company Tejidos de Punta Lindalana SAS (Case No. 13), the CUT alleges that, through the application of a labour accord that provides for more favourable conditions for non-unionized workers and the refusal of the company to negotiate with this new trade union, the company is seeking to undermine the union.
   • – Regarding the administrative labour complaint of SINTRACORPAUL against the Health Promotion Corporation of San Vicente de Paul University Hospital (Case No. 14), the CUT alleges that: (i) the trade union was established in 2008, and succeeded in achieving a collective agreement in 2010, following the intervention of an arbitration tribunal; and (ii) the company unilaterally established a benefits plans for non-unionized workers that provided for more favourable conditions than the collective agreement, in an attempt to halt the growth of the trade union.
   • – Regarding the administrative labour complaint of the National Union of Workers in the Catering, Hotel and Tourist Industry of Colombia (SINTHOL) against the company El Rodeo Country Club (Case No. 15), the CUT alleges that on 29 November 2013, three months after the signature of the collective agreement, the company signed a labour accord with its non-unionized workers, offering greater financial benefits in an effort to prevent the trade union from gaining new members.
   • – Regarding the administrative labour complaint of the Yumbo branch committee of the National Union of Workers of the Food and Drink Industry, the Agri-food Sector and Similar and Related Industries in Colombia (SINALTRAINBEC) against the brewery Cervecería del Valle SA (Case No. 16), the CUT alleges that: (i) the company is attempting to grant better working conditions to non-unionized workers by means of a labour accord; (ii) the labour accord was adopted unilaterally and is actively promoted to workers by the company; and (iii) the accord and its promotion constitute a barrier to the free exercise of the right to freedom of association.
   • – Regarding the second administrative labour complaint of SINALTRAINBEC against the aforementioned brewery (Case No. 17), the CUT alleges that: (i) at the national level, the trade union coexists with a labour accord adopted without the company fulfilling the legal requirements and of which the benefits are not compatible with union membership; and (ii) this accord succeeded in eradicating an earlier trade union.
   • – Regarding the administrative labour complaint of the Union of Workers of Pelpak against the company Pelpak SA (Case No. 18), the complainant organization alleges that: (i) in 2013, the company initiated the unilateral preparation of its labour accord a few days after the trade union had presented its list of demands; (ii) while the accord was unilaterally adopted in May 2013, the company did not sign any collective agreement with the trade union, necessitating the appointment of an arbitration tribunal; and (iii) the establishment of the labour accord and the halt in collective bargaining led to 18 workers leaving the trade union.
   • – Regarding the administrative labour complaint of SINTRAMETAL against the company Ave Colombia SAS (Case No. 19), the CUT alleges that: (i) the company unilaterally signed a labour accord that offers greater labour protections to its signatories and provides that they may not submit collective petitions to the company or initiate collective disputes during its period of validity; and (ii) the existence of the accord led to a drop in trade union membership.
   • – Regarding the administrative labour complaint of SINTRALIMENTICIA against the commercial enterprise Nutresa SAS (Case No. 20), the CUT alleges that: (i) a collective agreement was signed on 28 June 2012; (ii) on 22 May 2013, the enterprise adopted a labour accord that provided for better working conditions than the collective agreement; and (iii) the enterprise sent letters to promote the signing of the accord among members of the trade union, resulting in several members leaving the trade union and no new members joining.
   • – Regarding the administrative labour complaint of SINALTRAINBEC BRINSA against the company Brinsa SA (Case No. 21), the CUT alleges that: (i) the new subcommittee of the trade union was established on 26 March 2013 and presented a list of demands on 19 April 2013; (ii) the company unilaterally developed a labour accord on 30 March 2013; (iii) at the same time, collective bargaining with the trade union was not successful, necessitating the establishment of an arbitration tribunal, whose ruling remains pending; (iv) while awaiting said ruling, the unionized workers are at a disadvantage and are suffering discrimination; and (v) the above information demonstrates the anti-union nature of the accord, which encourages workers to sever ties with the trade union.
   • – Regarding the administrative labour complaint of the Union of Workers of Claro and Information and Communication Technologies Workers (ULTRACLARO & TIC) against the telecommunications company Telmex Colombia SA (Case No. 22), the CUT alleges that: (i) the employer unilaterally decided to establish a labour accord in 2011, in response to the signature of a collective agreement; (ii) the company coerced its workers into signing the accord; (iii) the accord is continuously and widely promoted via internal mail while the trade union cannot disseminate information about its existence; and (iv) the number of workers who have signed the accord is greater than the number of workers who are members of the trade union.
   • – Regarding the administrative labour complaints of the Colombian Association of Bank Employees (ACEB) and the National Union of Banking Employees (UNEB) against the Bilbao Vizcaya Argentaria Bank of Colombia (BBVA) (Cases Nos 23 and 25), the CUT alleges that: (i) before 2006, the collective agreement applied to all BBVA workers, as more than a third of the workforce were members of the trade union; (ii) in 2006, the BBVA merged with Granahorra bank, which had a labour accord; (iii) as a result of the merger and the consequent increase in staff numbers, union membership fell below the threshold of 33 per cent; (iv) at the same time, Granahorra’s labour accord was proposed to the whole workforce of the new structure of the bank; and (v) the labour accord proposed better conditions, immediately resulting in a marked decrease in trade union membership.
   • – Regarding the administrative labour complaint of SINTRACOLPEN against pensions administrator Colpensiones (Case No. 24), the CUT alleges that: (i) the accord only emerged in response to the establishment of a trade union and was presented during the direct settlement phase for the signature of the collective agreement with the company; (ii) the labour accord was established unlawfully without fulfilling the legal requirements, thus constituting a standard-form contract for workers who did not exercise their right to free negotiation; and (iii) the foregoing shows that the labour accord impinged upon the free collective bargaining initiated by the trade union in good faith.
   • – Regarding the administrative labour complaint of SINTRAPULCAR against the company Colombiana Kimberly SA (Case No. 26), the CUT alleges that: (i) the company concluded a labour accord on 21 March 2013 in response to the presentation of a list of demands by the trade union which led to the signature of a collective agreement in November 2013; and (ii) the accord provides better employment and economic benefits to non-unionized workers, thus encouraging workers to leave the trade union.
   • – Regarding the administrative labour complaint of SINALTRAINBEC against the company Bavaria SA (Case No. 27), the CUT alleges that: (i) in February 2012, 27 workers decided to establish a subcommittee of the union in Tocancia in order to be able to negotiate a collective agreement; (ii) during the discussion of the list of demands, the company unilaterally decided to revise the existing labour accord; and (iii) the labour accord offers greater economic benefits than those set out in the collective agreement, with a view to discouraging trade union membership.
   • – Regarding the administrative labour complaint of the Trade Union of Public Utilities Workers of the North Santander Department (SINTRAEMSPDNS) against the water company Aguas Capital ESP (Case No. 28), the CUT alleges that: (i) in response to the list of demands presented in 2012 by the trade union, the company unilaterally established a labour accord; and (ii) on 12 November 2013, the trade union signed a collective agreement that contains the same economic benefits and rights as those established in the accord, but the accord provides for incentives for workers who decide to join it, thus creating an incentive to leave the trade union.
   • – Regarding the administrative labour complaint of the National Union of Bavaria Brewery Workers (SINALTRACEBA) against the company Bavaria SA (Case No. 29), the CUT alleges that: (i) in reaction to the presentation of a list of demands, the company unilaterally established a labour accord in June 2012; (ii) for nine months the company refused to negotiate with the trade union until an administrative investigation was opened, which led to a collective agreement finally being signed in December 2013; and (iii) as well as not having to pay trade union dues, the workers who join the labour accord benefit from improved conditions, leading to a decline in trade union membership.
   • – Regarding the administrative labour complaint of SINTRATLAS against the security company Seguridad Atlas Ltda (Case No. 30), the CUT alleges that: (i) on 27 May 2014 a collective labour agreement entered into force; (ii) in order to counteract the effects of the collective agreement, on 19 May 2014, the company implemented a benefits plan for all non-unionized workers; and (iii) the plan provided for more favourable working and economic conditions and is used as a tool to put pressure on and discriminate against the trade union and its members.
   • – Regarding the administrative labour complaint of SINTRALIMENTICIA against the food company Industrias de Alimentos Zenu SAS (Case No. 31), the CUT alleges that: (i) on 1 May 2014, the labour accord in force in the company was extended; and (ii) as the company processes the benefits set out in the accord more quickly, a significant number of workers have left the union.
   • – Regarding the administrative labour complaint of the Union of Official Workers and Public Employees of the Municipalities and Decentralized Bodies of Colombia (SINTRASEMA CENTRAL) against the public enterprises of La Ceja (Case No. 32), the CUT alleges that: (i) in January 2012, the trade union presented a list of demands that led to the signature of a collective agreement; (ii) on 12 December 2013, the enterprises concluded a labour accord that offers identical economic and working conditions to the collective agreement; and (iii) however, as they do not have to pay trade union dues to receive the benefits, a significant number of workers left the trade union, and thus the labour accord achieved its anti-union objective.
   • – Regarding the administrative labour complaint of the National Union of Workers of Promotora Turística del Caribe SA (SINTRAPROTUCARIBE) against the tourism company Protucaribe SA (Case No. 33), the complainant organization alleges that: (i) the trade union presented a list of demands to the company on 15 April 2013; (ii) in response to that action, on 9 September 2013 the company concluded a collective labour accord with non-unionized workers; (iii) soon afterwards, in November 2013, the trade union achieved the signature of a collective agreement; and (iv) with a view to obtaining workers’ withdrawal from trade unions, the accord provides for much greater benefits than the collective agreement.
   • – Regarding the administrative labour complaint of SINALTRAINBEC against the company Maltería Tropical (Case No. 34), the complainant organization alleges that: (i) in response to the list of demands presented on 4 March 2014, the company began to collect signatures from non-unionized workers to establish a labour accord; (ii) the labour accord was signed and implemented on 10 March 2014 as an anti-union tool; (iii) on 6 May 2014, the trade union obtained the signature of a collective agreement; and (iv) however, the accord, which generally granted greater benefits than the collective agreement, led to a large number of withdrawals from the trade union.
3. 321. After briefly describing the content of each of the 34 complaints, the complainant organization adds that the use of labour accords violates the right to union representation. The CUT states that the right of association is a prerequisite for legitimizing social dialogue and that agreements should not be concluded with persons who do not represent organized workers, as that could lead to corruption, the imposition of illegitimate obligations and cases of discrimination. The complainant organization alleges that, in light of the above, the right of association should not be limited to allowing workers to associate, but should also include providing and guaranteeing the tools required by the workers’ organization, including union immunity, work permits, the holding of meetings, the right to communicate and, most importantly, social dialogue. The CUT concludes that, as such, signing labour accords with unorganized and non-representative workers, ignoring the existence of a trade union that complies with all legal requirements and democratic principles and serves as a spokesperson for all workers, constitutes a direct violation of freedom of association and is considered to be anti-union discrimination.
4. 322. The complainant organization also states that, in the cases reported, the use of labour accords with non-unionized workers violates Convention No. 154, which has been ratified by Colombia, which establishes as minimum elements required for collective bargaining (whatever legal form it takes) that it should be free, voluntary, bilateral and conducted in good faith. It adds that, similarly, article 481 of the Substantive Labour Code, by indicating that accords between employers and non-unionized workers are governed by the provisions of Titles II and III, Chapter I, of the second part of the Substantive Labour Code, assumes that the adoption of a labour accord is preceded by the following minimum requirements: (i) a free and spontaneous meeting of non-unionized workers; (ii) the approval of a list of demands from these workers; (iii) the appointment of workers with the mandate of the assembly; and (iv) the conclusion of free and bilateral collective bargaining between employers and non-unionized workers. The CUT affirms that in 100 per cent of the requests for administrative investigations described in the present complaint, those prerequisites were not met. On the contrary, these labour accords are signed after presentations are made by the enterprise or signatures are collected, so that workers receive certain benefits. Therefore, the workers sign a standard-form agreement without any collective bargaining having taken place, let alone free, voluntary and bilateral negotiations.
5. 323. The complainant organization continues by stating that labour inspectors should focus their investigations on verifying that collective bargaining has taken place in accordance with the minimum requirements of Colombian law: that it was free, voluntary, bilateral and conducted in good faith, that it did not infringe upon freedom of association and was not used as a tool for anti-union discrimination, and that these agreements do not grant greater benefits to non-unionized workers than unionized workers. The CUT laments the fact that the review of the labour inspectors’ investigations does not show that evidence concerning any of these conditions was obtained or sought.
6. 324. Finally, the complainant organization states that, when faced with the possibility of having better economic benefits, not having to pay trade union dues and not running the risk of being pursued through disciplinary procedures or accusations from superiors or managers, many trade union members prefer to resign from the organization or give up their membership, hence the existence of labour accords signed by non-unionized workers (or imposed by the enterprise) directly violates freedom of association.
7. 325. The complainant organization’s second allegation is that there is a lack of efficient mechanisms to protect against anti-union discrimination. The CUT states that, while the system to protect trade union freedoms in Colombia comprises administrative, penal and subsidiary judicial proceedings (ordinary action), none of those three mechanisms provides the appropriate protection required by Article 1 of Convention No. 98. With regard to the administrative channel, the complainant organization states that, in accordance with the Administrative Procedure and Administrative Dispute Code, as amended by Act No. 1610 concerning labour investigations: (i) people can request that the Ministry of Labour carry out investigations carrying penalties that may lead to the imposition of fines to ensure that individuals stop violating rights; (ii) the procedural stage of administrative proceedings at first instance must follow several steps that exceed a period of 65 days; (iii) labour inspectors are authorized to close investigations without making a determination as to the substance; (iv) an administrative decision at first instance can lead to two types of successive administrative appeals (an application for reconsideration by the same official or an appeal at a higher level for reversal of the decision) for a period of 150 days for each; and (v) the final administrative decision can also in turn lead to judicial appeals that may take between two and nine years, on average. In this regard, the CUT states that the administrative procedure leads, in law and more so in practice, to extremely lengthy periods of investigation and formalities; it is possible for a case to be closed without a decision on the merits; and that the administrative decisions do not lead to a definitive protection as they may only result in the imposition of a fine. Of the 34 administrative labour complaints, there has only been one decision, in which the enterprise was fined around US$30,000, but the violation has not ceased, as: first, the labour accord still exists and is being applied (the sanction does not revoke or remove the accord); second, the amount is not substantial (it is less costly to pay the fine than to respect the workers’ rights), despite the fact that fines of up to US$2 million are possible (under Act No. 1610 of 2013); and third, the sanction is not final, which is to say that the enterprise may submit an application for reconsideration, lodge a higher-level appeal or take legal action before the sanction can be applied, and that can take between two and nine years.
8. 326. With regard to criminal proceedings pursuant to article 200 of the Penal Code, which provides for sanctions in the form of imprisonment and fines in various cases of violations of freedom of association, which includes the conclusion of labour accords, which, on the whole, envisage more favourable conditions than those contained in the collective agreements within the same enterprise, the complainant organization laments the fact that five years after the introduction of this criminal penalty, no judgment has been handed down in relation to a violation of freedom of association.
9. 327. With regard to the subsidiary judicial channel, the CUT laments the fact that there is no specific standard to enable labour judges to resolve cases concerning freedom of association and that the only procedure that can be accessed is designed to resolve individual disputes which then has to be adapted somehow to resolve collective disputes. The complainant organization adds that the ordinary procedure that can be accessed does not involve special protection mechanisms for trade unions, it does not prevail over the other cases being investigated by the judge, and it does not carry presumptions in favour of the trade union. In Colombia, there are no special judicial proceedings to obtain protection against cases of anti-union discrimination or unlawful labour accords (under article 118 of the Labour Procedure and Social Security Code, there is a special judicial procedure in cases where union leaders are dismissed without suspension of trade union immunity but it is not applicable to cases of general anti-union discrimination) and therefore it is possible to launch a subsidiary judicial proceeding known as an “ordinary action” to process cases for which there are no special proceedings. Ordinary actions in Colombia are processed in the order in which they are filed, and given the grave situation of blockages in the Colombian judicial system, those cases can take between eight months and six years to process; if appeals are filed with the higher courts, they may take even longer.
10. 328. Finally, the complainant organization requests that: (i) the Government take all necessary steps to immediately resolve all the investigations that have already begun; (ii) the Committee reiterate its previous position that agreements with non-unionized workers should only be concluded where there are no trade union organizations and that workers’ right to representation lies solely in independent trade union organizations; (iii) the requirement under Colombian law that agreements with non-unionized workers must result from free, voluntary, bilateral negotiations undertaken in good faith be satisfied; (iv) criminal investigation procedures be initiated in each of the cases where a labour inspector identified that the labour accord was unlawful; (v) consultations take place with the most representative workers’ organizations to create special administrative inquiry and judicial protection mechanisms for cases where freedom of association has been violated; and (vi) measures be taken to reform the legislation, in particular article 481 of the Substantive Labour Code, to bring it into line with Conventions Nos 87 and 98.

B. The Government’s reply

1. 329. In a communication dated 25 May 2016, the Government states that: (i) in exercising the preferential power granted to the Office of the Deputy Minister for Industrial Relations, progress is being made in developing administrative labour procedures to handle alleged violations of labour rights by labour accords, with 40 inquiries having been assigned to the Special Investigations Unit that are currently at different stages; and (ii) in the present case, there is no violation of freedom of association, as the Ministry of Labour – at the request of the CUT and through the Territorial Directorates of Santander, Magdalena, Meta, Caldas, Risaralda, Atlántico, and Cundinamarca and the Special Investigations Unit of Bogotá – has expedited the corresponding investigations, with the following outcomes: (i) seven sanctions for violating the collective agreement, labour accord or arbitration, imposing fines of between COP32,217,000 and COP68,945,000 (approximately US$10,400 to $22,990); (ii) one direct agreement through the signature of a collective agreement; (iii) three cases pending appeals; (iv) three cases in the preliminary investigation phase; (v) three cases in the evidence-gathering stage; (vi) six decisions to close the case; and (vii) three cases in which charges have been brought.
2. 330. More broadly, the Government adds that: (i) in the interest of guaranteeing the respect of collective bargaining and the right of association, Act No. 1453 of 2011 was adopted to amend article 200 of the Penal Code, increasing the fines for violating the right to freedom of association and penalizing those who conclude labour accords that grant better conditions to non-unionized workers; (ii) to date, 270 cases of violations of the right of association have been identified as criminal in accordance with article 200, of which 19 have been prioritized since September 2015, resulting in three convictions and two indictments; and (iii) as illustrated by a recent ruling (Decision No. T-069 of 2015), the Constitutional Court safeguards the fundamental right to freedom of association and the principle of equality in infringements caused by labour accords.
3. 331. Furthermore, the Government states that the administrative authorities of the Ministry of Labour, particularly the labour inspectorate, are responsible for monitoring, overseeing and imposing sanctions not only in relation to measures under the Substantive Labour Code concerning freedom of association and collective bargaining, but also of all the standards of the Colombian legal system and that apply to those principles, which include but are not limited to the Constitution and the ILO Conventions ratified by Colombia. In this regard, while article 354 of the Substantive Labour Code, which prohibits a range of anti-union activities, does not refer to the anti-union use of labour accords, the provisions of the Constitution that protect freedom of association (articles 39 and 55), as well as the ILO’s own Conventions, constitute a valid legal basis for labour inspections to penalize such conduct. In this regard, the Government states that, because it is necessary to impose exemplary sanctions, the Ministry of Labour has been developing a concept for supporting the imposition of sanctions for this type of conduct, which would allow it to impose sanctions under Act No. 1610 of 2013 of up to 5,000 times the applicable minimum monthly wage, based on the right to equality of opportunity and treatment in employment and occupation and the right to non-discrimination, as well as on constitutional and legal rules.

C. The Committee’s conclusions

1. 332. The Committee observes that this case refers, first, to the alleged anti-union nature of numerous labour accords signed with non-unionized workers and the inadequate response from the labour administration to the complaints submitted in that regard, and, second, to the alleged general lack of effective mechanisms to protect against anti-union discrimination and other anti-union acts.
2. 333. With regard to the first allegation, the Committee takes note that the complainant organization states that, despite repeated observations from the CEACR and recommendations from the Committee on Freedom of Association, labour accords signed with non-unionized workers – and applicable solely to those workers – continue to violate the ILO Conventions on freedom of association and collective bargaining ratified by Colombia, such that, as can be gathered from the 34 administrative labour complaints that were submitted in 2014, supported by the CUT: (i) numerous labour accords, sometimes introduced as benefit plans, contained conditions that were more favourable than those applicable to unionized workers through their collective agreements; (ii) even when they contain conditions that are identical to those contained in the collective agreements negotiated with the trade union organizations, labour accords put the trade unions at a disadvantage and negatively affect trade union membership, as the workers can have access to the same advantages without having to pay trade union dues or having to risk potentially being subject to anti-union discrimination; (iii) with a view to counteracting the development of trade union activity, labour accords emerged at key moments in many cases, for example, in response to the establishment of a trade union or the submission of a list of demands by a union; (iv) labour accords are generally created unilaterally by the employer without being preceded by genuine negotiation with representatives of non-unionized workers and are actively promoted by the employer among the workforce; and (v) with regard to the above, labour accords affect the independence of trade union representation, they impact the content of collective bargaining, they seek to promote resignations from trade union organizations and they constitute an instrument of anti-union discrimination. The Committee notes that the complainant organization also alleges that: (i) contrary to requests from the ILO supervisory bodies, article 481 of the Substantive Labour Code continues to foster the aforementioned violations by allowing for the adoption of labour accords in enterprises that have a trade union presence; (ii) none of the 34 administrative complaints referred to have led to an investigation by the labour administration; (iii) investigations by the labour inspectorate into labour accords are in the majority of cases inadequate and incomplete; and (iv) the criminal complaints regarding the anti-union nature of labour accords have never been investigated.
3. 334. The Committee also takes note that the Government states that there is no violation of the freedom of association or collective bargaining in this case, in so far as: (i) the Office of the Deputy Minister of Labour pays close attention to administrative labour proceedings relating to alleged violations of trade union rights resulting from labour accords, with 40 investigations currently assigned to the Special Investigations Unit of the Ministry of Labour; (ii) the investigations into the cases highlighted in this complaint by the CUT have been expedited, and various sanctions have already been imposed; (iii) with a view to ensuring the respect of collective bargaining and the right of association, Act No. 1453 of 2011 was adopted, which amended article 200 of the Penal Code, increasing the fine for violating the right of association and penalizing those persons who conclude labour accords that grant better conditions to non-unionized workers; (iv) the practice of the Constitutional Court is to safeguard the fundamental right to freedom of association and the right to equality of all unionized workers with regard to possible grievances caused by labour accords; and (v) the labour inspectorate relies not only on the provisions of the Substantive Labour Code but also on the Constitution and the ratified ILO Conventions to penalize the anti-union use of labour accords in a dissuasive manner, as it may impose sanctions of up to 5,000 times the minimum monthly wage.
4. 335. The Committee recalls that it has on numerous occasions [see in particular Cases Nos 1973, 2046, 2068, 2355, 2362, 2493, 2796, 2801 and 2877] considered the alleged anti-union nature of labour accords which, according to article 481 of the Substantive Labour Code, an employer may sign with non-unionized workers in the enterprise where less than one third of the workforce belongs to a trade union organization; the Committee has issued a number of recommendations that will be referred to later.
5. 336. With regard to the allegation that the provisions of the Substantive Labour Code are inconsistent with the principles of freedom of association and the effective recognition of the right to collective bargaining, the Committee recalls that, in its last examination of a case relating to the use of labour accords in Colombia, it considered that the Government must guarantee that direct negotiations of collective agreements with employees are possible only in the absence of a trade union and that such negotiations should not be used in practice for anti-union purposes [see Case No. 2796, 368th and 362nd Reports]. The Committee requests the Government to keep it informed of the action taken in relation to this recommendation.
6. 337. With regard to the 34 administrative labour complaints outlined by the CUT in this case, the Committee takes note that the Government has provided information relating to 28 cases and that it indicates that: (i) sanctions were imposed in seven cases (two of those sanctions are still the subject of administrative appeals by the enterprises concerned) with fines of between COP32,217,000 and COP68,945,000 (approximately US$10,400 to $22,990); (ii) one case was settled directly through the signature of a collective agreement; (iii) six cases were closed (two of which are the subject of administrative appeals by the complainant trade unions); (iv) three additional cases are awaiting the outcome of administrative appeals; and (v) the other 11 cases are at various stages of the administrative process pending a decision.
7. 338. The Committee notes first that, according to this information, two years after the submission of the administrative complaints (the Government sent information in 2016 relating to the complaints submitted in 2014), final decisions have been handed down in ten cases, seven are awaiting the outcome of an administrative appeal, and 11 are still awaiting an initial decision. In this regard, recalling that cases concerning anti-union discrimination should be examined rapidly so that the necessary remedies can be really effective and that an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned [see Compilation of decisions of the Committee on Freedom of Association, sixth edition (2018), para. 1139], the Committee requests the Government to take all the necessary measures to ensure that final decisions are rendered without delay in respect of all the administrative complaints mentioned and to provide information on the content of the decisions and any pending cases mentioned in the present complaint).
8. 339. With respect to the allegations made by the complainant organization that labour inspection investigations are inadequate and insufficient to determine whether labour accords are anti-union in nature, particularly as they do not monitor the existence of genuine negotiation with non-unionized workers prior to the adoption of the accord, or the impact of the accord on freedom of association, the Committee observes that: (i) while noting the Government’s general indication that the labour inspectorate does not solely rely on the provisions of the Substantive Labour Code to determine whether there has been a violation of freedom of association, it does not have information on specific criteria used to determine whether a labour accord is anti-union in nature; (ii) equally, the Government has not provided specific information regarding the particular reasons that led the labour inspectorate to issue sanctions in seven of the 34 complaints presented by the CUT and to set aside a further six; and (iii) it is clear that under both the Penal Code (article 200) and the case law of the high courts of the country, the focus of examinations of the anti-union nature of labour accords is on a breach of the principle of equality between unionized and non-unionized workers, and that labour accords that provide non-unionized workers with more advantageous conditions than those established in any collective agreements concluded within the same enterprise are considered to be anti-union.
9. 340. In this regard, the Committee recalls that, as it indicated in several previous cases concerning Colombia, the signature of labour accords with the non-unionized workers should not be used to undermine the position of trade union organizations [see Compilation, op. cit., para. 1347 and Case No. 1973, 324th Report; Case No. 2068, 325th Report; Case No. 2046, 332nd Report; and Case No. 2493, 349th Report]. While taking due note of the Government’s indication of the measures taken to ensure that strong punitive sanctions are imposed to collective accords that would violate the principles of freedom of association and the effective right to collective bargaining the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employer or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Compilation, op. cit., para. 1231] and requests the Government to evaluate, together with the social partners, the effectiveness of the current labour inspection policy concerning the impact of labour accords on the exercise of freedom of association and collective bargaining. The Committee requests the Government, on the basis of that evaluation, to take the necessary measures to ensure that any anti-union use of labour accords leads to sanctions that effectively eliminate the identified anti-union practice. Recalling that it may avail itself of the technical assistance of the International Labour Office, the Committee requests the Government to keep it informed in this regard.
10. 341. The Committee notes that the complainant organization alleges, second, that there are no efficient mechanisms to protect against anti-union discrimination and that, while the system for protecting trade union freedoms in the country comprises administrative, penal and subsidiary judicial proceedings (ordinary action), none of those three mechanisms provides the appropriate protection required by Article 1 of Convention No. 98. The Committee notes that the complainant organization specifically alleges that: (i) the resolution of administrative labour complaints is excessively lengthy (and can take up to nine years in cases where the employer contests the rulings in the courts); (ii) administrative sanctions are limited to the imposition of fines, the amount of which is not dissuasive in practice and which do not put an end to the discrimination; (iii) the criminal proceedings pursuant to article 200 of the Penal Code, as amended in 2011, which provides for prison sentences and fines, have not resulted in the imposition of any penalties in the last five years, despite the fact that numerous complaints have been filed; and (iv) with regard to judicial proceedings before the labour courts, there are no particular legal proceedings for cases of anti-union discrimination (with the exception of dismissals that are contrary to trade union immunity) and, as such, recourse must be taken in the ordinary channel, which is extremely slow and lacks special safeguards to protect collective rights, which renders it inoperative.
11. 342. The Committee takes note of the fact that the Government demonstrates that the 2011 amendment to article 200 of the Penal Code significantly increased the penalty for violating the right of association and that, to date, 270 cases of violations of the right of association have been identified as criminal in accordance with article 200, and 19 of these have been prioritized since September 2015, leading to three convictions and two indictments. The Committee notes that, in addition to this information concerning the amendment of the Penal Code, the Government focuses its observations on the protection provided against the anti-union use of labour accords and has not provided any other information on the alleged lack of mechanisms to protect against anti-union discrimination in general.
12. 343. Taking due note of the fact that the full position of the Government on the existing national mechanisms concerning anti-union discrimination and their effectiveness is not available, the Committee notes that: (i) numerous complaints recently brought before the Committee by Colombian trade union organizations contain detailed allegations referring to the alleged slow and ineffective nature of administrative and judicial procedures for protecting against anti-union discrimination; (ii) on several occasions, the Committee has requested the Government to take the necessary measures to expedite the resolution of complaints of anti-union discrimination [see 374th Report (March 2015), Case No. 2946, para. 251, and Case No. 2960, para. 267]; and (iii) in one case recently examined by the Committee that, like the current complaint, contained general allegations regarding the lack of appropriate mechanisms to protect against anti-union discrimination, the Committee invited the Government, in consultation with the most representative social partners, to embark upon a joint examination of national mechanisms affording protection against anti-union discrimination with a view to taking such measures as may prove necessary to guarantee adequate protection in this respect [see 381st Report (March 2017), Case No. 3061, para. 307].
13. 344. Recalling that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Compilation, op. cit., para. 1140], the Committee reiterates its request that the Government, in consultation with the most representative social partners, embark upon a joint examination of the various measures to safeguard against all acts of anti-union discrimination with a view to taking such measures as may prove necessary to guarantee adequate protection in this respect. The Committee requests the Government to keep it informed in this regard, and reminds the Government that it may avail itself of technical assistance from the ILO.