Colombia

Articles 3 and 6. Right of workers’ organizations to organize their activities and to formulate their programmes. Legislative issues. The Committee recalls that for many years it has been referring to the need to adopt measures to amend the legislation in relation to: (i) the prohibition of strikes by federations and confederations (section 417(i) of the Substantive Labour Code) and in a very broad range of services that are not necessarily essential in the strict sense of the term (section 430(b), (d), (f) and (h); section 450(1)(a) of the Substantive Labour Code; Taxation Act 633/00 and Decrees Nos 414 and 437 of 1952, 1543 of 1955, 1593 of 1959, 1167 of 1963, and 57 and 534 of 1967); and (ii) the possibility to dismiss workers who have intervened or participated in an unlawful strike (section 450(2) of the Substantive Labour Code), including in cases in which the unlawful nature of the strike is a result of requirements that are contrary to the provisions of the Convention.
With reference to the prohibition of strikes in a series of services that are not necessarily essential in the strict sense of the term, the Committee notes that the Government states, firstly, that the right to strike, even though it is a fundamental right of trade union organizations, is not an absolute right, and that it may therefore be subject to limitations as in the case of areas where essential public services are provided. The Commission further notes that the Government reports on the examination by the House of Representatives of Bill No. 071 of 2019 amending the Substantive Labour Code with a view to harmonizing the right to strike with the Conventions on freedom of association of the International Labour Organization, which was transmitted to the House of Representatives on 24 July 2019 and had its first reading on 17 February 2020. The Government indicates that, in its explanations introducing the Bill, the Ministry of Labour considered it necessary to define essential public services and that the Bill was discussed by the Standing Committee for Dialogue on Wage and Labour Policies. In this regard, the Committee notes that the Government states that there is currently no tripartite consensus to carry out the legislative amendments requested by the workers’ federations with regard to strikes and that, on this point, it is appropriate to take into account both the position of the trade union organizations and that of the employers’ organizations. The Committee notes that the Government finally describes in detail ruling No. SL 1680-2020 of 24 June of 2020 of the Supreme Court of Justice respecting a strike in the health sector and emphasizes that it: (i) indicates that strikes are not prohibited in the whole health sector, but strictly and exclusively in those services the interruption of which would really endanger the life or health of the population; (ii) changes its criteria and considers that the procedure established in sections 444 and 445 of the Substantive Labour Code, which establishes a series of requirements for the exercise of the right to strike, only applies to contractual strikes seeking the conclusion of collective agreements; and (iii) considers that the procedure cannot be applied to other types of strikes, such as those attributable to employers, protesting against policy or sympathy strikes, as sections 444 and 445 were adopted prior to the 1991 Constitution at a time when the legislator had not considered types of strikes other than contractual strikes.
The Committee notes that the ANDI, after expressing the view that the right to strike is not covered by the Convention, once again expresses the opinion that Colombian legislation and case law on strikes in essential services are fully satisfactory and that the country has an independent judicial system which examines each case in the event of disputes between employers and workers. The Committee finally notes that the CUT and CTC also refer in their observations to ruling No. SL 1680-2020, in which respect they emphasize in particular that the Supreme Court: (i) recognizes the right to strike as a fundamental human right; and (ii) takes as a basis the position of the supervisory bodies of the ILO in examining whether, in the specific case before it, the work stoppage effectively and directly endangered the life, health or personal safety of the population. The Committee notes that the CUT and CTC also affirm that: (i) the ruling only applies between the parties and, as it was issued by a court of cassation, does not affect the standing of the legislative provisions on the subject; (ii) up to now, there has been no legislative proposal by the Government to amend the legislative provisions that restrict and are in violation of the right to strike; and (iii) although the examination is continuing of Bill No. 071 of 2019, proposed by the trade union confederations to bring the national legislation on the right to strike into conformity with international ILO standards, the Government majority has prevented discussion of the Bill and a vote on it with the aim of shelving it for a second time.
The Committee takes due note of the observations made by the Government and the social partners. The Committee notes with interest ruling No. SL 1680-2020 of the Supreme Court, provided by the Government and the trade union confederations, which is based on the fundamental nature of the right to strike for the application and interpretation of legal provisions establishing the conditions for its exercise and setting its limits. In this regard, the Committee recalls that in its previous comment it noted that both the Constitutional Court, in relation to the oil sector, and the Supreme Court, with regard to the various services defined as essential in the legislation, have called for a revision of the legislation to better limit the restrictions imposed on the exercise of the right to strike. However, the Committee continues to note that no specific progress has been made with the legislative reforms requested by the Committee in relation to strikes in essential services. The Committee recalls that in its previous comment it indicated in this regard that it considers that: (i) essential services in which the right to strike may be restricted or prohibited are those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (ii) although the concept of essential services is not absolute, the Committee has considered that sectors such as oil and public transport do not constitute essential services in the strict sense of the term, but are public services of overriding importance in which the maintenance of a minimum service may be required. The Committee therefore firmly expects that the Government will take the necessary measures in the near future to revise the legislative provisions referred to previously respecting essential services as indicated in its comments. The Committee requests the Government to provide information on any progress made in this regard and reminds it that it may have recourse to the technical assistance of the Office.