2009 Annual Survey of violations of trade union rights - Colombia
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Colombia, 11 June 2009, available at: http://www.refworld.org/docid/4c52caf7c.html [accessed 18 October 2017]|
|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
Despite the strong emphasis on security by the current government and a 60% fall in the murder of trade unionists over the last few years, 2008 saw a disturbing 25% rise in cases of anti-union violence. A total of 49 trade unionists were assassinated, of whom 16 were trade union leaders, 45 were men and four were women. Attacks, disappearances and death threats continued.
Trade union rights in law
Freedom of association: 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.
There are a number of legal impediments to the full exercise of freedom of association in Colombia, however, such as Resolution no. 626 of February 2008, which gives as one of the reasons for denying registration "that the trade union organisation was formed for purposes other than those derived from the fundamental right of association". The ILO considers that the discretional powers conferred on the administrative authority to deny registration are contrary to Convention 87 and has asked the government to repeal this provision.
There are also problems related to various contractual arrangements, such as workers' cooperatives, service contracts and civil and commercial contracts, which cover genuine employment relationships and are used to prevent workers setting up trade unions. A new law of July 2008 on workers' cooperatives has not resolved the situation, in the view of the ILO.
As regards the assassination of trade unionists, 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.
Trade union organisations report that the paramilitary groups who have agreed to comply with this law have supplied very little information about the assassination of trade union leaders.
Collective bargaining: Colombian legislation has introduced a principle of discrimination 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 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 negotiating working conditions. To date, the necessary legislative steps have not been taken to give effect to this ruling.
The ILO has also pointed to the need to guarantee that the collective "pacts" arranged directly with the workers should not be used to undermine the position of trade union organisations or the possibility of negotiating collective agreements with them.
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 ILO principles. The law also allows for the dismissal of workers who have taken part in a strike that was declared illegal, even when the illegality is the result of requirements that are contrary to the principles of freedom of association.
Law No. 1210 of July 2008 (amending Art. 451 of the Labour Code) transfers the power to declare a strike illegal from the administrative authorities to the judiciary. The same law makes considerable changes to the Labour Code as regards compulsory arbitration, by stipulating that both parties must call for an Arbitration Tribunal if no solution can be reached by the time the negotiating deadline has expired.
The law still prohibits federations and confederations from calling strikes, in contravention of ILO Convention 87.
Trade union rights in practice and violations in 2008
Background: Labour law and policy still exclude more than two thirds of workers from social and worker protection measures, by denying basic workers' rights to over 12 million people. The laws and practices of the Colombian State are contrary to the principles of decent work, leaving nearly 70% of workers in a precarious employment situation. Workers' cooperatives (Cooperativas de Trabajo Asociado) are an example of this precariousness. Colombia's continuing domestic conflict means that abuses by illegal armed groups and government forces are still rife. The Colombian government dealt some serious blows to the FARC in 2008, but the guerrillas are still kidnapping people, recruiting children, using antipersonnel mines and perpetrating other abuses. Even when paramilitary groups are broken up they are never totally demobilised. In fact they appear more active than ever, threatening and killing civilians, including trade unionists and human rights defenders. The Colombian justice system has made progress in investigating the abuses committed by the paramilitary forces, but in 2008 the Uribe administration tried to obstruct these investigations.
A history of government interference in the creation and running of trade unions: The government, and in particular the Ministry of Social Protection, has played a disturbing role in restricting trade union rights, refusing to register 515 trade union documents between 2002 and 2008, 253 of which concerned the creation of new trade unions. A complaint was lodged with the ILO's Committee on Freedom of Association which made several recommendations concerning the arbitrary interference of the State.
One case that illustrates this issue is that of the National Union of Colvanes Ltda. Workers (SINTRACOLVANES), founded on 14 February in Medellín. The Ministry of Social Protection refused to register it as a trade union and the employer began to dismiss the union's members as soon as it had been informed by the Ministry of the application for registration. A few days later there were reports of a plot to kill Héctor Vásquez Fernández, of the National Trade Union School (ESN – a labour research agency) and José Joaquín Vasquez Ríos, a member of the Executive Committee of the Antioquia branch of the United Workers' Centre (CUT) because of their advisory role in the creation of SINTRACOLVANES. In the end the union was not able to register because following the dismissals it no longer had enough members.
Collective bargaining a right for the few in Colombia: Barely 1.2% of workers in Colombia are covered by a collective agreement. In 2008 only 473 agreements were signed, of which 256 were collective agreements negotiated with the unions and 217 were pacts (negotiated directly with workers, without unions), demonstrating the steady fall in collective bargaining and the loss of this right.
Attacks, disappearances and murders: Of the 49 trade unionists murdered during the year, the most high-profile cases nationally were that of Guillermo Rivera Fúquene, President of the Bogota Public Service Workers' Union (SINSERVPUB), whose body appeared on 15 July in Igabué, three months after he disappeared in Bogotá; and that of Leonidas Gómez Roso, a Citibank employee and a leader of the National Union of Bank Employees (UNEB), killed on 7 March in Bogotá, a day after the national march against the paramilitary and all forms of violence, in which he took an active part.
Another memorable attack occurred on 1 April in the Guamez valley, Putumayo, in which Luz Mariela Díaz López died. She was a member of the Putumayo Educators Association, and was pregnant at the time. Another trade unionist, Emerson Iván Herrera, was killed with her.
José Omar Galeano Martínez was killed by two gunshots fired by hired assassins on 23 August. According to the CUT, the national trade union centre to which the Colombian Federation of Lottery Ticket Vendors (FECOLOT) is affiliated, Galeano Martínez led the fight in defence of the lottery ticket vendors' (or loteros) right to work. The loteros were united in their opposition to the handing over of the national lotteries to private consortia. The CUT therefore considers his murder had political motives.
On 13 August, Manuel Erminson Gamboa Meléndez was killed in a hail of gunfire in Puerto Asís, Putumayo. He was Vice-President of the Rural Workers' Association for the Defence of Putumayo, and on the National Board of the United Agricultural Workers Union Federation (FENSUAGRO).
On 8 August, Luis Mayusa Prada was shot and killed by hired assassins in Saravena, Arauca. There is no information to date on the identity of the killers or those who gave them their orders. Mayusa had been transferred to Saravane from the Meta department where, until just days before his death, he had been a member of the local CUT leadership in the department.
Sugar cane cutters go on indefinite strike: On 7 September more than 15,000 sugar cutters in the del Cauca valley, working for the cane sugar mills in the south west of the country and linked to various workers' cooperatives in the region, decided to call a general, indefinite strike after presenting a list of demands for improvements to their working conditions, namely: decent pay, working hours and health and safety conditions in line with the relevant ILO Conventions.
The government showed itself to be not only inconsiderate in the way it dealt with the demands, it was also irresponsible: it militarised the dispute and tried to initiate legal proceedings on the false grounds that "dark forces" (the hands of the FARC) were behind the movement, which gave rise to threats against some of the leaders, and trumped up charges against workers and activists who supported the strike. Furthermore, in order to discredit the movement and present it as being opposed to "national interests", it blamed the cane cutters for the rising price of fuel, caused by the shortage of ethanol in the country.
Death threats against FENSUAGRO leaders: Eberto Díaz, President of FENSUAGRO, attended the European Social Forum in Malmo, Sweden, from 17 to 21 September, after taking part in a hearing on human rights in Colombia, held from 15 to 17 September at the European Parliament in Brussels.
On 18 September FENSUAGRO received an e-mail from a paramilitary organisation calling itself "AUC – Friends of Alvaro Uribe in Colombia" informing it that several trade union and social organisations had been declared military targets, including FENSUAGRO. The message gave the names of two national leaders of FENSUAGRO, the President, Eberto Díaz, and the Secretary, Juan Efraín Mendoza.Threats were also made against Eberto Díaz's family in Colombia while he was in Europe.
National and multinational companies bent on destroying the unions: The Spanish multinational Unión Fenosa and its subsidiary Electricaribe have sought to systematically prevent union organising. Their plan consists of harassment, persecution and repressive and illegal action against workers. They have tried to get union members to agree to retirement or, failing that, have brought fictitious charges against them in order to dismiss them. By doing so they aimed to meet a monthly quota of staff reductions imposed from their superiors in Spain, at the same time reducing the number of staff affiliated to the Electricity Workers Union of Colombia (SINTRAELECOL) and covered by the collective agreement.
Good Year Colombia is using the same policy of pressure and threats against workers at its plant in Cali to make them leave the National Rubber, Plastic, Polyethylene, Polyurethane, and Synthetic Products Workers' Union (SINTRAINCAPLA).Tactics include disguised dismissals and the repeated refusal to recognise the union, totally ignoring the principles of ILO Convention 87, ratified by Colombia.
Over 150 workers at the Relleno Sanitario Doña Juana (the Colombian capital's refuse tip), 90% of whom belonged to a workers' cooperative, were informed that their Cali-based cooperative would cease to exist and that they would therefore have to sign a contract with another cooperative based in Medellin, but there was no mention of what was to happen to the contributions they had made to the first cooperative.
Stevedores employed by the Carbosan Ltda. coal company (owned by Carboandes and the Santa Marta Port Company) decided to set up a trade union, in compliance with the regulations, to improve their deplorable working conditions. They complained of having to work 12-hour days without a break, alternating one week of day-time shifts with one week of night-time shifts, followed by seven days' unpaid rest days. They did not receive any of the bonuses, holiday pay, rest pay, overtime pay, allowances for work on night shifts, Sundays or holidays, or continuity bonuses, foreseen by law, even when the contractor Todo Servicios Ltda. paid the respective contributions as if the work had been carried out without interruption. The Ministry of Social Protection refused to register the union on the spurious grounds that they were contract workers and therefore did not have the right to organise or to bargain collectively, clear proof that regrettably the Ministry is at the service of the employers and the multinationals. After the failed attempt to form a union, 50 workers were dismissed.