The law provides for the right of workers to form and join unions, bargain collectively, and conduct legal strikes, and it prohibits antiunion discrimination. Members of associated workers’ cooperatives are not allowed to form unions, since the law recognizes members of a cooperative as owners. The law prohibits members of the armed forces and police from forming or joining unions. The law provides for automatic recognition of unions that obtain 25 signatures from potential members and that comply with a registration process. Public-sector employees legally have the right to bargain collectively. The government and employers generally respected freedom of association and collective bargaining in practice. Workers faced some obstacles to exercising those rights, and the government faced numerous challenges effectively enforcing applicable laws governing those two rights.
The law permits associated workers’ cooperatives (CTAs), collective pacts, and union contracts. Under collective pacts employers may negotiate accords on pay and labor conditions with workers in workplaces where no union is present or where a union represents less than one-third of employees. Law and regulations prohibit the use of CTAs and collective pacts to undermine the right to organize and bargain collectively, including by extending better conditions to nonunion workers through such pacts. Through a union contract, a company may contract a union, at times formed explicitly for this purpose, for a specific job or work; the union then in essence serves as an employer for its members. Workers who belong to a union that has a union contract with a company do not have a direct employment relationship with either the company or the union. Labor disputes for workers under a union contract may be decided through an arbitration panel versus labor courts if both parties agree.
The law does not permit members of the armed forces, police, and persons performing “essential public services” to strike. Before conducting a strike, unions must follow prescribed legal procedures, including entering into a conversation period with the employer, presenting a list of demands, and gaining majority approval in the union for a strike. The law limits strikes to periods of contract negotiations or collective bargaining and allows employers to fire trade unionists who participate in strikes or work stoppages ruled illegal by the courts.
The government has the authority to fine labor-rights violators. The government sought to enforce most applicable labor laws, but a lack of an inspection strategy, as well as an overburdened judicial system, inhibited speedy and consistent application. The maximum penalty for violations of law, including those that prohibit the misuse of CTAs, is 5,000 times the minimum monthly wage, or COP 3.4 billion ($1.13 million). The law also stipulates that offenders repeatedly misusing CTAs or other labor relationships shall receive the maximum penalty and may be subject to losing their legal status to operate. Employers who engage in antiunion practices may also be imprisoned for up to five years, although government officials admitted a fine was more likely than imprisonment. Prohibited practices include impeding workers’ right to strike, meet, or otherwise associate, and extending better conditions to members of collective pacts than to union members. Through March the government reported fines on certain subcontracting entities for abusive forms of subcontracting at a value of COP 2.283 billion ($761,000).
The Ministry of Labor’s Special Investigations Unit continued to exercise its power to investigate and impose sanctions in any jurisdiction. The vice minister for labor relations decides on a case-by-case basis whether to assign the Special Investigations Unit or the regional inspectors to investigate certain sites. The unit was reportedly overburdened with cases, resulting in denials of recent union requests for review by the unit.
The Ministry of Labor leads a tripartite Inter-Institutional Commission for the Promotion and Protection of the Human Rights of Workers, with participation by the government, organized labor groups, and business community. The commission met in August.
As part of its commitments under the 2011 Colombian Action Plan Related to Labor Rights (Labor Action Plan), the government continued to take steps to protect internationally recognized labor rights. Labor inspections by the Ministry of Labor for abusive subcontracting in the five priority sectors of palm oil, sugar, ports, mines, and cut flowers remained infrequent, however. Critics claimed inspections lacked necessary rigor, assessed fines were not collected, and abusive subcontracting continued. The government continued to engage in regular meetings with unions and civil society groups.
The Ministry of Labor, in collaboration with the International Labor Organization (ILO), continued a virtual training program to prepare labor inspectors to identify antiunion conduct. It also implemented methods, including contract and process maps, as strategic planning tools to prioritize interventions. The ministry continued to employ a telephone- and internet-based complaint mechanism to report alleged labor violations. Union members complained that existing systems did not allow citizens to register anonymous complaints and noted that complaints registered through the telephone and internet systems do not result in action.
Judicial police, the Technical Investigation Body, and prosecutors investigating criminal cases of threats and killings are required to determine during the initial phase of an investigation whether a victim is an active or retired union member or is actively engaged in union formation and organization, but it was unclear whether they did so. It could take several months to transfer cases from regional field offices of the Attorney General’s Office to the Attorney General’s Human Rights Directorate, and cases are transferred only with the approval of the attorney general in response to direct requests, instead of automatically.
The government continued to include in its protection program for labor activists persons engaged in efforts to form a union, as well as former unionists under threat because of their past activities. Through July the NPU provided protection to 440 trade union leaders or members (others protected included journalists, human rights advocates, and land restitution claimants). Approximately 12 percent of the NPU’s budget was dedicated to unionist protection. Between January 1 and September 30, the NPU processed 171 risk assessments of union leaders or members; 96 of those cases were assessed as posing an “extraordinary threat,” and the NPU provided them protection measures. The NPU reported that through June, the average time needed to implement protection measures upon completion of a risk analysis was 50 days in regular cases or five days for emergency cases. NGOs, however, complained about slow processing times.
The protection and relocation of teachers falls under the Ministry of National Education and the departmental education secretaries, but the NPU retains some responsibilities for the risk analysis and protection of family members. Through July 31, the NPU evaluated 99 threat cases against teachers and found 62 to be of extraordinary risk.
In cases of unionist killings from previous years, the pace of investigations and convictions remained slow, and high rates of impunity continued. Labor groups stated more needed to be done to address impunity for perpetrators of violence against trade unionists and the large number of threat cases. The Attorney General’s Office indicated it prioritized cases in order of severity and had a backlog of lower-priority cases. As of July 31, the Attorney General’s Office reported 753 sentences against 620 persons in cases of violence against unionists since 2006 that were filed in the Human Rights Directorate. Between January 1 and July 31, the Attorney General’s Office reported 78 sentences in cases of violence against union leaders.
Violence, threats, harassment, and other practices against trade unionists continued to affect the exercise of the right to freedom of association and collective bargaining. According to the Attorney General’s Office, through July 31, 166 teachers were registered as victims in cases of homicide.
The National Union School (ENS), a labor rights NGO and think tank, reported 14 trade unionists were killed through August. ENS and other labor groups stated that focusing on killings alone masked the true nature and scope of the violence against labor activists. Labor groups noted that in some regions nonlethal violations continued to increase. ENS reported during the same period 94 death threats, four nonlethal attacks, nine arbitrary detentions and 16 cases of harassment, and one case of an illegal raid.
For example, in June unidentified gunmen killed Mauricio Velez Lopez, national vice president of the National Public University Workers Union (Sintraunal).
Unions cited multiple instances in which companies fired employees who formed or sought to form new unions. Some employers continued to use temporary contracts, service agencies, and other forms of subcontracting to limit worker rights and protections. Fines assessed by the government did little to dissuade violators because fines were often not collected. In the first eight months of the year, the government reported 1,211 workers benefited from 14 formalization agreements that the Ministry of Labor reached with employers in Bogota and the departments of Amazonas, Barrancabermeja, Caqueta, Casanare, Valle del Cauca, Cesar, Choco, Huila, Norte de Santander, Putumayo, Quindio, and Uraba.
Labor confederations and NGOs reported that business owners in several sectors used “simplified stock corporations” (SAS), union contracts, foundations, or temporary service agencies in attempts to circumvent legal restrictions on cooperatives. While in theory SAS workers may exercise their right to organize and bargain collectively with SAS management, it appeared that in some cases the SAS had little or no control over the conditions of employment. The Ministry of Labor stated that an SAS, like any corporate structure, may be fined for labor violations if they occurred.
According to ENS, Indupalma, a large employer in the palm sector located in the municipality of San Alberto, Cesar Department, employed more than 1,500 workers through illegal cooperatives. This reportedly was the only company in the region that continued using labor intermediation with illegal cooperatives with no sanctions or corrective measures by the Ministry of Labor.
Metal and mineworkers’ union SINTRAIME reported that inspections for abusive subcontracting carried out by the Ministry of Labor at the Drummond coalmines were ineffective in safeguarding the freedom of workers to organize.