2010 Annual Survey of violations of trade union rights - Colombia
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2010|
|Cite as||International Trade Union Confederation, 2010 Annual Survey of violations of trade union rights - Colombia, 9 June 2010, available at: http://www.refworld.org/docid/4c4fec85c.html [accessed 29 August 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138
The historical and structural violence against the Colombian trade union movement remains firmly in place, manifesting itself in the form of systematic human and trade union rights violations. On average, men and women trade unionists in Colombia have been killed at the rate of one every three days over the last 23 years. The year 2009 saw the murder of 48 trade unionists, the worst affected being workers in the agricultural and education sectors. In addition to these assassinations, there were at least 400 attacks on trade unionists' lives, freedom and physical integrity, including attempted murders and three disappearances. The measures taken by the state have proved ineffective and insufficient, and the murders, disappearances and threats are continuing. The efforts to investigate these crimes are incomplete and the cases reported by trade union organisations are not always taken into account. The law continues to place a range of limitations on trade union rights, despite the recent improvements brought to the labour legislation.
Trade union rights in law
There have been many positive changes to the trade union rights situation in recent years, as new laws and court rulings have improved protection against anti-union discrimination and union interference, the recognition of trade unions, bargaining in the public sector, and have clearly limited compulsory arbitration. Freedom of association is also enshrined as a basic right in the Constitution. However, there are problems related to various contractual agreements, such as workers' cooperatives, service contracts and civil and commercial contracts, which cover genuine employment relationships but can be used to prevent workers from setting up trade unions.
Furthermore, while the right to collective bargaining is secured, the pension system is not covered by collective bargaining. There is also a possibility to conclude collective "pacts" directly with the workers, which can be used to undermine the position of trade unions.
The right to strike is also included in the Constitution, but the law still prohibits federations and confederations from calling strikes. Laws dating back to between 1956 and 1990, which ban strikes, remain applicable to a wide range of public services that are not necessarily essential.
Trade union rights in practice and violations in 2009
Background: Unemployment rose to 12% during 2009. Informal employment also increased, pushing the share of the active population working in the informal economy up to 58%. The Standing Committee on Labour and Wage Policies failed to reach an agreement on an increase in the minimum wage for 2010, despite the efforts of the workers' representatives. The government and the military were shown to be involved in a number of extrajudicial executions, as highlighted by the "false positives" scandal, which revealed that the Colombian army had murdered close to 2,000 innocent citizens and passed them off as guerrillas killed in combat. The killings were largely driven by the bonuses awarded to members of the security forces and the intelligence service, DAS, under Decree 1400 passed by the Presidency of the Republic in 2006. The year 2009 also saw the government and its political allies promoting a referendum to change the Constitution once again to allow President Uribe to stand for a third term in 2010.
Legislation contributes to fall in trade union organisations: A number of Colombian laws have contributed to a fall in the number of trade union organisations, such as Act 50 of 1990 providing for fixed-term contracts concluded for periods of less than a year, which stops workers from joining a union under the threat of not having their individual employment contracts renewed. The situation was exacerbated by Act 789 of 2002, supposedly passed by the national government to stimulate the creation of new jobs.
Collective pacts: Although a slight increase was seen in the number of collective agreements signed during 2009, (360, as compared with 280 in 2008, according to Social Protection Ministry figures), employers continue to violate ILO Convention 98. Another 221 collective pacts, used by employers to offer non-unionised workers better conditions and thus prevent unionisation, were signed over the year (the same number as in 2008).
Public workers' collective bargaining rights still limited: The government remains steadfast in its refusal to guarantee public workers the full exercise of collective bargaining rights, despite Colombia having ratified ILO Conventions 151 and 154, and the issuing of Decree 535 in 2009, which only, in fact, makes reference to consultation, not collective bargaining, which is very different.
Increase in labour outsourcing: Labour outsourcing or subcontracting is still on the rise, largely driven by the ever-growing number of "Associated Work Cooperatives". The "associates", not being considered workers, do not enjoy the basic rights enshrined in the labour legislation, being covered by the legislation on cooperatives rather than on employment. Nor are they able to join unions, for a number of reasons, including the fact that they are not considered to be workers.
Practices to obstruct unionisation: Service contracts, also known in Colombia as "service provision orders" (OPS), and civil contracting make it impossible for workers hired in this way to join a union, as they are covered by a legal regime independent of the labour legislation.
Trade unionists murdered: The year 2009 saw the murder of 48 trade unionists, including at least five women, and 22 trade union leaders, two of whom were women. As regards the suspected authors, there is only evidence pointing to those responsible in 12 cases. Heading the list are the murders committed by paramilitaries, with seven cases, followed by those committed by guerrilla groups, with four cases, and one case of ordinary crime. In addition to these murders, there were at least 500 attacks on Colombian trade unionists' lives, freedom and physical integrity during the year, including 11 attempted murders and three disappearances.
The trade union worst affected by murders in 2009 was the Colombian teachers' federation, Federación Colombiana de Educadores (FECODE), with 19 cases, followed by the national agricultural workers' federation, Federación Nacional Sindical Unitaria Agropecuaria (FENSUAGRO), which saw 11 of its members assassinated; third in line was the national prison workers' union, Asociación Sindical de Empleados del Instituto Nacional Penitenciario y Carcelario (ASEINPEC), with three cases, and finally, the national hospital workers' union, Asociación Nacional de Trabajadores Hospitalarios de Colombia (ANTHOC), with two cases. As regards the Colombian departments with the highest murder rates, it should be noted that Arauca, Santander and Córdoba accounted for half of all the assassinations committed in 2009, with ten, nine and five cases respectively.
The most notable among these 48 murders are:
Arled Samboni Guaca, a member of the Argelia municipal workers' campesino association, Asociación Campesina de de Trabajadores del Municipio de Argelia (ASCAMTA), affiliated to FENSUAGRO-CUT, was murdered on 16 January. He was leaving his house with his six-year-old son when two gunmen approached them and shot the trade unionist seven times. He had been threatened and forcibly displaced with his family in September 2008 by narco-paramilitaries calling themselves "Los Rastrojos".
Walter Escobar, a member of the Valle education workers' union, Sindicato Único de Trabajadores de la Educación del Valle (SUTEV), was murder on 21 March. His body was found in the municipality of Palmira. He had not been to the school where he worked for eight days.
Prison guard and ASEINPEC member José Alejandro Amado Castillo was murdered by hired assassins on 21 March while travelling in an official vehicle.
Ramiro Cuadros Roballo, a member of SUTEV, was murdered on 24 March. He had been receiving death threats for years.
Hernán Polo Barrera, leader of the education sector administrative workers' union, Sindicato de Trabajadores y Empleados Administrativos al Servicio de la Educación en Colombia (SINTRENAL), was murdered on 4 April. His sixteen-year-old daughter was injured. The trade union leader had led a number of protests in Montería two weeks prior to his assassination.
Asdrúbal Sánchez Pérez, a member of the prison workers' union, ASEINPEC, was murdered on 18 April.
On 22 April, suspected paramilitaries murdered trade union activist Edgar Martínez in the municipality of San Pablo (Bolívar). Martínez belonged to the agro-mining federation of South Bolívar, Federación Agrominera del Sur de Bolívar (FEDEAGROMISBO), which had been receiving threats from paramilitaries and was being harassed by the police.
Teacher Víctor Franco Franco, a member of the Caldas education workers' union, Sindicato de Educadores Unidos de Caldas (EDUCAL), affiliated to the Colombian teachers' federation, FECODE, was murdered on 22 April. He was stopped on the night of 22 April by two armed men who, after torturing him, shot him dead.
Teacher Milton Blanco Leguizamón, a member of ASEDAR, was murdered on 24 April. The murder took place in a completely militarised town, guarded both by the police and the army.
Vilma Cárcamo Blanco, a dentist and member of hospital workers' union, ANTHOC, was murdered on 9 May. She had been heading protests in support of the demand for the payment of wage arrears and the negotiation of the "List of Respectable Demands".
Pablo Rodríguez Garavito of the Arauca teachers' union, ASEDAR, was killed on 9 June by unknown assailants who shot him several times.
On 11 June, unknown assailants murdered Jorge Humberto Echeverri Garro, a teacher at the school in the municipality of Arauquita and a member of ASEDAR.
Rafael Antonio Sepúlveda Lara, a member of ANTHOC, was murdered on 20 June.
Gustavo Gómez, a worker at Nestlé – Comestibles la Rosa S.A. and a member of the food industry union, Sindicato Nacional de Trabajadores de la Industria de Alimentos (SINALTRAINAL), was murdered in his home on 21 August. The assassination coincided with SINALTRAINAL's presentation of a list of demands to Nestlé Purina Pet Care de Colombia S.A.
On 22 August, two assailants on a motorbike murdered Fredy Díaz Ortiz, a member of ASEINPEC, after giving him a brutal beating.
On 23 August, Abel Carrasquilla was murdered, according to witnesses, by members of the paramilitary group "Los Rastrojos". The incident took place following Carrasquilla's efforts to promote affiliation with the Santander agrarian workers' association, Asociación Agraria de Santander (ASOGRAS), at the company where he was working.
Teacher Zorayda Cortés López, a member of the Risaralda education union, Sindicato de Educadores de Risaralda (SER), was murdered on 13 November.
The body of Leny Yanube Rengifo Gómez, a teacher and union activist with the Cauca teachers and education workers' association, Asociación de Institutores y Trabajadores de la Educación del Cauca (ASOINCA), was found on 24 November. She had disappeared on 12 November.
Union bashing at Red Cross: The Colombian Red Cross, and particularly the branches in Cundinamarca and Antioquia, has been implacable in its onslaught against the union formed within the organisation, stepping up its attacks during the months of July, August and September. The abuses were denounced at administrative and judicial level, including before the Supreme Court. The Red Cross in Cundinamarca tried to withdraw a series of fringe benefits from the workers, in retaliation for their having joined SINTRACRUZROJA. The Antioquia branch of the Red Cross requested, without any justification, the lifting of the legal protection (fuero sinidical) enjoyed by one of the trade union leaders, so that it could dismiss her.
Collective bargaining agreements under Decree 535/09 not fulfilled: The government and the Colombian education workers' federation, FECODE, reached a number of agreements under the new Decree, but the national government has only complied with three of the points agreed on.
Unions continue to suffer for exercising the right to strike: Although the power to declare a strike illegal now rests with the judicial authorities, violations continue to take place due to the existence of national legislation that contravenes ILO conventions. The mining, petrochemical, agrofuels and energy workers' union, SINTRAMIENERGETICA, at the U.S. mining company Drummond, staged a strike in protest at the health and safety violations that caused the deaths of various workers at the coal mine and plants operated by the multinational in the department of César. Although the strike was initially recognised as legal and legitimate, on appeal, the Supreme Court declared the strike illegal, giving the company the right, in accordance with Article 450 of the Labour Code, to dismiss those who took part in the strike. The supervisory bodies of the ILO have stated that this contravenes the conventions on freedom of association. The holding of a peaceful strike in defence of miners' rights led to the dismissal of 11 SINTRAMIENERGETICA representatives.
Telmex launches fierce attack on right to unionise: On 19 January, telecommunications multinational Telmex initiated a series of unfair dismissals targeting representatives of the Telmex workers' union, SINTRATELMEX, affiliated to the CGT, in a bid to leave the organisation with less than 25 members. Trade union action had to be taken to secure the unfairly dismissed workers' reinstatement, which it succeeded in doing. Telmex initiated special proceedings with the ordinary labour courts, aimed at dissolving the recently created trade union organisation and withdrawing its legal status, but failed. The attack has been taken to such lengths that the company has unfairly dismissed over 30 workers to date, with the sole purpose of undermining the right to form and join a trade union.
Mass lay-offs in education sector in Barranquilla: On 22 January, the Mayor of Barranquilla launched a restructuring process culminating in the dismissal of some 2,300 workers, including 390 teachers belonging to the Barranquilla district education workers' union, SINTRAEDIBA, affiliated to the Colombian workers' confederation, the CTC. Workers were also laid off from municipal bodies and hospitals affiliated to the national trade union centres CGT and CUT. The measure was implemented in an unusual and ruthless manner: school security guards forcibly removed employees from their workplaces and informed them of their dismissal. A peaceful protest organised by the trade union organisations was brutally repressed by the police. Death threats were subsequently issued in the form of a pamphlet signed by a "joint paramilitary front", declaring a list of 20 people, including various trade unionists, military targets.
SINTRAINAGRO members threatened: During the last few days of February and the first half of March, banana workers in the Urabá region belonging to the national agricultural sector union, SINTRAINAGRO, which is affiliated to the national trade union centre CUT, received death threats on pamphlets distributed in the run-up to the start of negotiations on the list of demands related to working conditions.
Serious threats against members of the Colombian Commission of Jurists for their work denouncing the impunity surrounding anti-union violence: On 2 March, Lina Paola Malagón Díaz, a trade union rights lawyer dedicated to the issue of impunity in cases of violence against trade unionists in Colombia, received a fax declaring her a military target. In February, Lina Poala Malagón Díaz had drawn up a report on the impunity surrounding crimes committed against trade unionists on account of their work to defend labour rights. The information in the report was referred to at length at a U.S. House of Representatives hearing on workers' rights and anti-union violence in Colombia, held on 12 February. The ITUC sent a complaint, on 5 March, to the ILO Committee on Freedom of Association, within the framework of Case 1787.
Anti-union policy pursued: On 5 March, the Peruvian drinks multinational, AJECOLOMBIA, unilaterally dismissed a number of union representatives as part of its union-bashing policy against SINTRAAJE, an affiliate of the national labour confederation, the CGT. The company also opened controversial disciplinary cases against union representatives and activists, culminating in their dismissal. The trade union organisation has initiated proceedings for their reinstatement under the law protecting trade unionists against unfair dismissal.
CUT and CTC phones tapped: In May, wide media coverage was given to the statements of high-ranking government officials regarding the phone tapping conducted by Colombia's intelligence agency, the DAS. The wire tapping operation not only targeted possible government opponents and civil servants, but, first and foremost, High Court judges, the vice president of the Republic and social organisations. Two national trade union centres, the CUT and CTC, were among the organisations being tapped. The DAS was also intercepting the communications of the health and social security workers' union, SINDESS, the Bogotá telephone workers' union, SINTRATELÉFONOS, and the Colombian displaced persons and human rights NGO, CODHES.
President of SINALTRAINAL in Cali arrested: Diego Rodríguez, president of the Cali branch of the national food workers' union, SINALTRAINAL, was arrested along with his two children, sixteen-year-old Diego and fifteen-year-old Laura, during a May Day march in Cali. The three were threatened, intimidated and beaten by officers of the National Police.
Workers dismissed for forming union: On 9 May, Atlas Transvalores in Medellin fired 11 workers who were trying to form a union. Another four were forced to withdraw their membership.
SINALTRAINAL President issued with death threat: On 24 November, Luis Javier Correa Suárez, President of the national food workers' union, Sindicato Nacional de Trabajadores de la Industria de Alimentos (SINALTRAINAL), received death threats to the mobile phone assigned to him by the protection programme of the Interior and Justice Ministry. On 20 November, two calls were made to SINALTRAINAL's landline, one confirming receipt of a fax and another from a man saying that he would call the branch unions to inform them of the fax's content and that Coca Cola had relations and influence "with the government and President Álvaro Uribe's sons". The death threat came just days after the Inter-American Commission on Human Rights (IACHR) gave notification of its decision to extend precautionary measures to SINALTRAINAL members, and at a time when the union was involved in a dispute with Coca Cola bottler, Industria Nacional de Gaseosas S.A., which had refused to sign the collective agreement despite having agreed to negotiate the list of demands presented to the company.
185 workers fired for joining union: On 23 December, 185 out of the 200 workers at Finca Palo Alto joined the agricultural sector union, Sindicato Nacional de Trabajadores de la Industria Agropecuaria (SINTRAINAGRO), and presented a list of demands. The management immediately dismissed the 185 workers, owing them one month's wages and a series of benefits, such as the family subsidy, health and funeral insurance, for which the company had been deducting contributions from their wages without making the payments to the corresponding agencies for the last seven years.