2008 Annual Survey of violations of trade union rights - Colombia
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Colombia, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca9a2d.html [accessed 22 August 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138
With 39 assassinations during 2007, Colombia remained the most dangerous country in the world for trade unionists. Although there were fewer murders there was a trend towards other forms of violence: the number of attempted killings doubled, there was an increase in the number of forced removals, illegal raids and arbitrary arrests, whilst the quantity of threats remained constant. It should be stressed that often the assassinations and death threats have targeted relatives, not just as a means of impeding trade union work but also as a way of restricting the number of violations registered as attacks on trade unionists. 76% of the violations were committed against workers in the local authority and personal service sectors and sub-sectors such as education and health. Although more than 30,000 paramilitaries have been "demobilised" in the last three years under a controversial government scheme, there is convincing evidence that they are continuing to threaten, assassinate and abduct trade unionists, sometimes with the collusion of the security forces. Although amendments were made to the Law on Justice and Peace, which governs this so-called "demobilisation", there is continued concern that it will extend the impunity.
Trade union rights in law
Freedom of association is enshrined as a basic right in the Constitution. The Labour Code provides for the automatic recognition of any trade union that has at least 25 members and has complied with a simple registration process. In law, unions are free to decide their own rules and manage their own activities. Only a judicial authority, as opposed to a government body, may suspend trade unions or annul their legal identity. However there are a number of significant legal impediments to the full exercise of trade union rights in Colombia.
Disguised employment relationships are frequently used as a means of avoiding union organisation and activities. Various types of contractual arrangements such as associated work cooperatives and service, civil or commercial contracts under which workers may not form or join trade unions are used to disguise actual employment relationships. This is in violation of Article 2 of C.87 under which all workers without distinction should enjoy the right to establish and join trade unions.
Arbitrary refusal to register trade unions, new trade union rules or the composition of an executive committee of a union are the discretion of the authorities and often occurs for reasons beyond the express provision of the legislation. In 2007 the government passed Decree No. 1651 in order to speed up the process of registration, however one of the grounds under which registration may be denied is "that the trade union has been established not to guarantee the right of freedom of association but to secure labour stability". The ILO Committee of Experts has found that this discretionary power is inconsistent with Article 2 of Convention 87; the experts have asked the government to amend this provision.
Limited right to strike: The Colombian Constitution recognises the right to strike for all workers, except for members of the armed forces, the police and workers providing essential public services as defined by law. Similarly, the Constitution charges the legislative authorities with making provisions governing the right to strike. However, this task has not yet been fulfilled, and in practice, laws dating back to between 1956 and 1990, which ban strikes, remain applicable to a wide range of public services. These do not necessarily qualify as "essential" services, in contravention of the ILO definition that only covers those "the interruption of which would endanger the life, personal safety or health of the whole or part of the population" In its 2007 report to the ILO on the implementation of Convention 87, the government acknowledged that the definition of essential services contained in section 430(b) of the Labour Code is in contravention of Convention 87; the ILO Committee of Experts has recommended that the government accept the technical assistance of the ILO to ensure that new legislation adequately addresses these points.
Furthermore, the law prohibits federations and confederations from calling strikes, and the Ministry of Health and Social Protection (responsible for monitoring and administrative control of industrial relations) can impose mandatory arbitration if a strike goes on for more than 60 days – in contravention of ILO Convention 87 and recommendations by the Committee of Experts. In 2007 a draft law was placed before Congress to amend section 448(4) of the Labour Code to allow for the parties to agree a conciliation mechanism. However the draft amendment retained the possibility for one party to petition to Ministry of Social Welfare to convene an arbitration tribunal that retaining the possibility of compulsory arbitration to end strike action in a manner inconsistent with Convention 87.
Trade union officials who engage in strike action that has been declared unlawful can be dismissed. Those engaged in lawful strike action can also be dismissed, provided six months have passed since the end of the dispute.
Collective bargaining – discrimination in the public sector: Colombian legislation has introduced clauses that discriminate against the jobs and collective bargaining rights of public sector workers, by classifying them as "official workers" ("trabajadores oficiales") or "civil servants" ("empleados públicos"). The unions representing public sector workers are not allowed to put forward demands or sign collective agreements, since their right to collective bargaining is limited to submitting "respectful requests" that do not cover key aspects of industrial relations, such as wages, benefits and employment contracts.
For many years the ILO Committee of Experts has emphasised the need to give effective recognition to the right to collective bargaining of public employees who are not engaged in the administration of the State. In November 2005 the Constitutional Court ruled that in order to give effect to article 55 of the Political Constitution, trade unions of public employees should be given recourse to other means of concertation regarding conditions of work. To date, the necessary legislative steps have not been taken to give effect to this ruling.
Labour reform: A reform of labour regulations was imposed in 2004, without any form of consultation or social dialogue, which resulted in longer daily working hours, reduced overtime payments, reductions of severance pay, increased worker flexibility, restrictions on collective bargaining and the loss of previously acquired rights. For example, the new law excludes the possibility of apprenticeship contracts being covered by collective bargaining. According to the ILO conventions, collective bargaining should cover "all written agreements concerning working conditions and terms of employment".
Discretionary powers: Despite being incompatible with Article 2 of ILO Convention 87, Resolution 1651 of 2007 continues to provide certain discretionary powers.
"Law on Justice and Peace": On 22 June 2005, the Congress adopted the Law on Justice and Peace, which the government claimed was designed to promote reconciliation and the fight against impunity. In July 2006, the Constitutional Court of Colombia, the highest legal instance in the country, found that many aspects of the Law were in breach of the Constitution. The legal framework regulating this demobilisation remains inadequate:
it is only applicable to the few members of illegal armed groups that are under investigation or have already been sentenced. Given the high level of impunity, most of the paramilitaries and members of guerrilla groups are not subjected to any investigations.
the abuses committed by members of illegal armed groups are investigated by the Peace and Justice Department of the Office of the Public Prosecutor, whereas cases of human rights violations by the security forces are handled by the Human Rights Department of the same body. The separation of these cases has undermined the investigations carried out on the security forces themselves.
the possibility of combatants enjoying illegally obtained assets is seriously affecting the victims' rights to compensation.
the Law on Justice and Peace still makes no provision for preventing former combatants from re-engaging in the conflict.
It is also worth noting some government proposals that threaten to remove the existing protection of victims of human rights abuses and to weaken the already ineffectual judicial system. The government has, for example, proposed a significant reduction of the "tutela", a legal measure granting emergency protection of constitutional rights whilst a case is before a court. The government has proposed to restrict the jurisdiction of the Constitutional Court, which has hitherto been a bastion in protecting workers' rights. The government also abruptly broke off its dialogue with the Inter-Institutional Commission for the Promotion and Protection of Worker's Human Rights.
Tripartite Agreement signed at the ILO: As a result of the action over a number of years by the Colombian trade union centres, supported by the international trade union movement, the Tripartite Agreement on Freedom of Association and Democracy was signed on 1 June 2006 at the ILO headquarters in Geneva during the International Labour Conference, by the presidents of the three trade union confederations, the president of the employers' organisation and the Deputy Minister of Social Affairs of Colombia. The main item in that agreement was the establishment in Colombia of an ILO Permanent Representation, whose main task would be to promote and protect the fundamental rights of workers, and in particular their rights to life, freedom of association, freedom of expression and free collective bargaining, whilst ensuring respect of the policies of the ILO. Following intensive national and international pressure, on 18 October 2006 the tripartite agreement that defines the mandate of the ILO Permanent Representation in Colombia was signed, and the government finally agreed to open the ILO Office on 23 November 2006 and it started work on 15 January 2007.
Trade union rights in practice and Violations in 2007
Background: Colombia, despite some improvement in the figures on violence, is still in the grips of a deep human rights crisis. The armed forces and their paramilitary allies continue to pursue a strategy of counterinsurgency, suppressing any support, fictitious or real, shown by the civil population for the guerrilla. Terror and impunity form an integral part of this strategy: forced disappearances, torture, violence (sexual or other) against women, death threats, and the murder of civilians are deployed to cut any link, whether real or perceived, between the population and the guerrilla. It is against this background that trade unionists are repeatedly labelled as subversives (President Uribe himself made a public statement in which he accused the Colombian trade union movement of supporting the FARC). Their rights are subsequently violated. The violations often coincide with labour disputes or negotiations on working conditions.
The current protection programme for trade unionists includes the supply of bodyguards, armoured vehicles and mobile phones. These measures are clearly insufficient, however, as although some improvement has been seen, the figures on trade union rights violations in Colombia remain alarmingly high.
Impunity: In its report of 20 December 2007, the Office of the Attorney General of the Nation indicated that the 1,244 cases of violations against trade unionists (covered in case 1787 brought before the ILO) had reached the following stage of proceedings:
727 cases at the preliminary stage; no suspects identified;
117 cases are being examined or are due to be examined; alleged perpetrator(s) identified;
5 cases suspended without an alleged perpetrator being identified, for which reason the investigations are not being continued;
The 395 remaining cases have been assigned but there is no further information on the stage of the proceedings.
Out of the 2,557 cases of antiunion violence registered by the National Trade Union School (ENS) between 1986 and January 2008, only 87 have resulted in a sentence, which represents a level of impunity of 96.7%. If it continues at the same pace, the Colombian judiciary would take over 30 years to settle all the cases.
Even more worrying, the defendants in these cases justify their action by arguing, without evidence, that the victim was linked with illegal armed groups and, in many instances, the judiciary deems these unsubstantiated claims to be valid grounds for disqualifying the plaintiff and ruling out the antiunion nature of the crime. Similarly, in many cases, the criminal investigation focuses on looking into the victim's background rather than the motives of the perpetrator; as a result, the facts are often not cleared up and those responsible for the crime are not identified. In the case of crimes against women, the questioning and reconstruction of the incident often constitutes a further humiliation. The analysis of cases without taking into consideration factors such as the growth in paramilitary activity in the different regions of the country, the collusion of the state in many of the violations, or violations against the same victim by different actors, deviate the course of the investigations and hinder their effectiveness.
Operation Dragon: As reported in the 2006 Annual Survey, the Cali municipal workers' union, SINTRAEMCALI, was informed of a plot known as "Operation Dragon", hatched by the management of the Cali Municipal Corporation, EMCALI, to eliminate various trade union leaders employed by the corporation, a member of the Chamber of Representatives and other human rights activists. Information was discovered revealing that the security firm, made up of members of the armed forces and contracted by the corporation to destabilise the union, had gathered information on the union leaders' private lives, including the protection systems they use, their bodyguards' identity, the registration plate numbers of the vehicles they use, etc. There were indications that this personal information was being obtained from members of the Department for National Security (Departamento Administrativo de Seguridad – DAS), which, among other things, is in charge of providing the protection measures for trade unionists. SINTRAEMCALI filed a complaint with the ILO. In Report 348 of November 2007, the ILO Committee on Freedom of Association once again urged the government to "send its observations on the allegations concerning the existence of a plot known as "Operation Dragon" [...], regarding which the government had previously stated that both the Attorney General of the Nation and the Inspector General of the Nation had opened investigations".
Collusion between intelligence services and the death squads: In April, an investigation by the Attorney General of the Nation revealed that the DAS was pursing a policy of secretly monitoring and observing legitimate trade union activities, and those of the trade union leaders in particular. Among the new evidence was the fact that investigations were being carried out into 22 union leaders and a trade union advisor that had been specifically identified by the National Intelligence Directorate (Dirección Nacional de Inteligencia). Seven of those appearing on the list of people under investigation were murdered after being identified by the Directorate.
Violations involving the same actors and different incidents: The flower growing sector has a very poor reputation as regards its workers' rights. Workers at BOCHICA CI export company, in Ceja, Antioquia, formed a company union, the Unión General de Trabajadores de la Empresa Exportaciones BOCHICA CI, affiliated to the national agricultural workers' union, SINTRAINAGRO. In February, the police "invited" them not to unionise, showing them a video at their workplace about the murder of trade unionists. Some days later, they were issued death threats in the form of leaflets and graffiti signed by the "Águilas Negras del Oriente" paramilitary group. At the same time, the Ministry of Social Protection denied them the right to unionise, providing no legal grounds for its decision.
On 27 September, Andrés Damián Flórez Rodríguez was abducted by three armed men in a black van. Andrés Damián is the son of José Domingo Flórez, who works at the Coca Cola bottling plant in Santander and is a leader of the food workers' union, SINALTRAINAL. He was beaten and threatened. On releasing him they said, "Tell your father we won't rest until we see them chopped into pieces". Several other SINALTRAINAL members had also received death threats on 10 February, 26 July, 9 and 13 August, and 20 and 25 September.
Assassinations: On 2 February, Carmen Cecilia Santana Romaña, wife of Hernán Correa Miranda, First Vice President of the CUT, was murdered. She worked at Finca Palmeras and was also a trade union leader, playing a key role in the Demands Committee of SINTRAINAGRO.
On 28 February, William Cabuyales Díaz, President of the Cabuyal agricultural workers' union, the Sindicato de Agricultores del Cabuyal, and member of the Regional Executive of FERTRASUCCOL, was murdered in the Siloé district of Cali.
On 19 May, Ana Silvia Melo de Rodríguez, founder and former leader of the food and drink traders' union, the Sindicato Manuela Beltrán de Trabajadores Expendedores de Alimentos y Bebidas de la Plaza del Mercado del Barrio San Francisco del Sur de Bogotá (SINDIMANUELA), affiliated to the CGT, was murdered.
On 6 June, Andrés Melán Cardona was murdered in Ríonegro, Antioquia. He was the son of Hernando Melán Cardona, a trade union leader at Textiles Rionegro, a subsidiary of Coltejer, where he was negotiating a list of demands.
In June, Julio César Gómez Cano, leader of the Antioquia teachers' association, the Asociación de Instructores de Antioquia (ADIDA), was murdered.
On 1 July, committee members of the informal street traders' union, the Sindicato de Vendedores Informales Estacionarios de Santiago de Cali (SINTRAVIECALI), were attacked by hired assassins on motorbikes. Arnovis Ocoro Balanta was killed and María Evel Angulo was injured. The attack took place between the towns of Suárez and Morales in the Department of Cauca.
On 6 September, Augusto Ramírez Atehortúa, a teacher at the Institución La Inmaculada, in Guarne, was murdered.
On 12 September, Alberto Valencia Correa, coordinator of the Institución las Palmas in Envigado, and lecturer at the University of Antioquia, was murdered.
On 19 September, Rosalino Palacios Mosquera, a teacher of English and physical education at the Institución Educativa Atanasio Girardot, was murdered in the Robledo district of Bello, Antioquia. One of her brothers was killed alongside her.
On 7 November, Mercedes Consuelo Restrepo Campo, a teacher at the Institución Educativa Hernando Botero O'Byrne in Cartago, in the Department of Valle del Cauca, was murdered. She had been working as a teacher for 30 years and had been a member for four years of the sub-directorate of the Valle teachers' union, the Sindicato Único de Educadores del Valle (SUTEV) in Cartago, where she was the Secretary of Women's, Children's and Family Affairs.
On 2 November, Leonidas Silva Castro, a teachers' union leader, was murdered at her home in the Prados del Norte district. She was President of the sub-directorate of the teachers' trade union association, the Asociación Sindical de Institutores Nortesantandereanos (ASINORT), in Villacaro, Norte de Santander.
On 3 November, Jairo Giraldo Rey, President of the sub-directorate of the national fruit, agri-business, hotel and tourist industry union, the Sindicato Nacional de Trabajadores de la Industria Frutera, Agroindustrial, Pecuaria, Hotelera y Turística del Grupo Empresarial Grajales (SINALTRAIFRUT), affiliated to the CGT, was murdered in Toro, in the Department of Valle del Cauca.
On 22 November, José Jesús Marín Vargas, a member of the food industry union, the Sindicato Nacional de Trabajadores de la Industria de Alimentos (SINALTRAINAL), was murdered on his way home from the "Comestibles La Rosa" factory, belonging to a branch of Nestlé, in Dosquebradas, Risaralda.
Attempted abduction: On 9 February, Alberto Pumarejo Arias, a construction worker at the MERCADEFUR supermarket in Bucaramanga was intercepted after finishing work by three armed persons who forced him into a car and took him to the outskirts of Bucaramanga. One of the captors was a woman who identified herself as the commander of the FARC's 24th Front. They told him they would kill him if he refused to cooperate with them and forced him to say that he was a member of the guerrilla. Afterwards, they took him to the Primero de Mayo district, where he managed to escape. They had repeatedly threatened to kill him during the journey.
Arrests: On 26 April, Teófilo Manuel Acuña Ribón, Presidente of the agro-mining federation, the Federación Agrominera del Sur de Bolívar, was detained by members of the Nueva Granada Anti-Air Battalion of the V Brigada, in the city of Santa Rosa, in Sur de Bolívar.
On 3 May 2006, Ender Rolando Contreras García, coordinator of the internal audit office of the Arauca electricity company, (ENELAR), treasurer of the trade union at the company and Vice President of the Arauca branch Standing Committee for the Defence of Human Rights, was arrested. He was still being held at El Barne prison in Boyacá at the end of October 2007. He was imprisoned under false charges of extortion, conspiracy to commit a crime and rebellion, after having denounced a series of irregularities to the Vice Presidency of the Republic, the Inspector General and the Public Prosecutor, among others.
Attempted murder: On 13 February, at 7.30 pm, on the southeast motorway of Cali, Henry Alzate, an employee at Club Colombia of Cali and Vice President of the Cali branch of the food, hotel and associated workers' union, the Sindicato Nacional de Trabajadores de la Industria Gastronómica, Hotelera y Similares de Colombia, affiliated to the CGT (HOCAR-CGT), was the victim of an attempted murder. The attack was carried out by hired assassins on powerful motorbikes who left him with a bullet wound in the head and the left shoulder. He was admitted to "El Rosario" hospital in Cali.
Raids: On 18 October, the home in Arauca of Oscar García, social and trade union leader of the USO union confederation (Unión Sindical Obrera) was searched by staff from the Public Prosecutor's Office and the Technical Investigations Unit (CTI), accompanied by members of the national police. The Public Prosecutor said that the search was due to the suspected presence of alkaloids and supplies for drug trafficking. None of these elements were found.
Threats: Raúl Enrique Gómez Velasco, President of the free workers' federation of Norte de Santander, the Federación de Trabajadores Libres del Norte de Santander (FETRALNORTE), Third Vice President of the public servants' federation, the Federación Nacional de Servidores Públicos (FENASER), and President of the public and official employees' union of Norte de Santander, the Sindicato de Empleados Públicos y Trabajadores Oficiales del Departamento Norte de Santander (SINDENORTE), received a series of death threats by telephone. After the last threat, on 12 June, he decided to move away from his home in Cúcuta with his family.
In February, the Águilas Negras paramilitary group also sent a pamphlet with death threats to Javier Correa, Luis García and José Domingo Flórez, the three leaders of the food industry union, the Sindicato Nacional de Trabajadores de la Industria de Alimentos (SINALTRAINAL), and workers at the Coca Cola plant in Santander. The pamphlet stated that they were "military targets" and was signed "the demobilised forces of Magdalena Medio".
On 10 February, an envelope was slipped under the door of the ASTDEMP union office, at the CUT Santander head offices in Bucaramanga. The envelope contained death threats against SINALTRAINAL members working at the Coca Cola bottling plant in Bucaramanga.
At the beginning of March, Jimmy Fernando Núñez Belalcázar, leader of the informal vendors' union, the Sindicato de Trabajadores Vendedores Informales Estacionarios de Santiago de Cali (SINTRAVIECALI), and Executive member of FESTRALVA, affiliated to the CTC, received a death threat from a paramilitary group.
On 21 September, Rodolfo Vecino Acevedo, a leader of the USO, received a death threat by post from the "Águilas Negras Unidas de Colombia", a paramilitary organisation. Attempts had already been made between September 2004 and March 2005 to kidnap his children, and on 25 November 2007 an attempt was made on the life of his partner, who continues to receive death threats.
On the morning of 3 December, a pamphlet reached the offices of the USO in Villavivencio, issuing a death threat against Héctor Yesid Vaca, a member of the National Executive, and Marcos Aarón Suárez, President of the sub-directorate of the USO in Meta. It was signed by the "Autodefensas Unidas del Casanare" (AUC) paramilitary group.
Dismissal of unionised workers: On 6 July, the ITUC formally protested against the anti-union practices against the union at Brink's of Colombia, the Sindicato Nacional de Trabajadores de Brink's de Colombia S.A. (SINTRABRINKS-CTC). The company was penalising the workers to force them into withdrawing from the union, to demoralise them and to dissuade other workers from joining. Unionised workers were the targets of financial coercion, such as the exclusive promotion of non-unionised workers or the offering of benefits in exchange for non-unionisation. The company also targeted the union leaders, using arms such as dismissal, sanctions, demotional transfers, and even denying them the right to perform the tasks they had been hired for.
In August, the closure of the UNILEVER personal care products factory in Bogotá was announced. Given that all the unionised employees at UNILEVER in Colombia worked on this particular production line, the company effectively rid itself of any union presence at its plants in the country: the SINTRA UNILEVER ANDINA trade union disappeared along with the 110 jobs. All the other UNILEVER workers in Colombia are hired under irregular contractual arrangements, such as the so-called Associative Work Cooperatives (CTA); they have no job stability and cannot join a trade union organisation.
Anti-union practices: The management at MOLDES MEDELLIN, ANDES INTERNATIONAL TOOLING and ANDES CAST METALS FOUNDRY simply refuse to acknowledge the existence of the glass and associated workers' union SINTRAVIDRICOL, along with the membership of its workers and the handling of their grievances, despite the fact that all the relevant registration papers and documents are filed at the Ministry of Social Protection. They continue, meanwhile, to use temporary employment agencies to fill permanent posts at the firms, only employing a small minority of the workers on long-term contracts. They also use wage discrimination against unionised workers.
Violence against demonstrators: The operations and transportation of coal at the Glencore A.G. and Drummond mines produce terrible pollution in the towns of La Jagua de Ibírico and El Paso, in the Department of César. In addition, the local population is under constant assault from the companies' security guards. A peaceful rally was held in protest at the situation, blocking the access routes to the town on 9 February. The following day, antiriot police responded violently to the protest, killing 42-year-old Manuel Celis Mendoza. In the same incident, 22-year-old Gabriel Enrique Gomez, 28-year-old Neger Robles, and Jairo Díaz, were also seriously injured, along with three boys aged 13 and a two-month old baby.