The Colombian collective negotiation model, over the past decades, has not been particularly different from the other models implemented in Latin America. As a member of the International Labour Organization (ILO), the Colombian State has sworn to protect and guarantee the freedom of association and collective bargaining of all individuals and unions, their individuality, respect, status and capacity to act in defense of their interest in and on behalf their associates. Relevant treaties were ratified almost 40 years ago and to this extent, internal legislation on the subject (which dates from the late 1940's and early 1950's) instituted deep modifications in order to adapt to previous hot topics and new trends on collective employment legislation. These modifications are fully applicable and enforceable.
The Colombian Constitutional Court (created in 1991 to safeguard the integrity of the Colombian Constitution) removed from the legal system several regulations that regulated the representation of unions before the employer in the event there are multiple unions in the relevant company. In the Court's view, the regulations undermined certain ILO Treaties since they limited the ability of employees and their Unions to freely negotiate a collective bargaining agreement with an employer. For more than a decade, we have witnessed numerous collective negotiations in Colombia, regardless of the union which initiated them, the company in which the union was based, the companies in which their affiliates were employed the most, the other collective negotiations being handled or already handled on the same topics within the same industry and, in general, seeking only to care for the right of unions / employees of having their own private and particular negotiation proceeding with their employer.
Even if the modification of the legal scope of the collective negotiations in Colombia tended to ensure the enforceability of applicable ILO Treaties and also protected fundamental rights in accordance with Colombian legislation, the basic principle of negotiations, understood as the capacity of both parties to freely negotiate the conditions of their respective employment relationships in favor of the economic revenue of the employer and the adequate compensation for the employee, arising from the beneficial ownership of his / her workforce, was tainted.
The ability of the Unions, as a powerful force in national employment relationships, and their ability to execute their main functions in accordance with applicable employment legislation, was undermined, as the union's ideology worried about the ability of small unions to have a remarkable status and same benefits, as opposed to creating a negotiation scenario which allows them to really improve their employment conditions.
From a practical standpoint, even if with modifications of the legal system Colombia complied with its duty as an ILO Member State to guarantee the rights of all legally formed unions, both parties of the collective relationships had to consider referred new issues that impacted their activities and goals. For the employer, the fact that companies have to initiate a formal negotiation process, in accordance with applicable legislation, each time a union was formed, or that an Industry Union captured the attention of some of its employees, implied for them a considerable administrative / economic burden that sometimes challenged their operational capacity and the economic equation of daily activities. Conversely for unions, even if traditional unions in Colombia (mainly Industry Unions of Oil & Gas, Pharmaceutical, Banking, Energy and Agricultural sectors) always managed to keep a constant negotiation of their prior Collective Bargaining Agreements ("CBA"), small / recently created unions (base unions, in the majority of the cases) have no practical bargaining capacity as, even if from a technical perspective their rights were guaranteed, and their negotiation skills were irrelevant if a prior negotiation had already been handled within the company (one from an Industry Union, for example) and at the end of the day, companies were not willing to gave small unions different / higher benefits than the ones already agreed upon for the majority of their employees in the other union. Bottom line: negotiations were "independent" from a formal perspective, but were actually "dependent."
In 2014, the Colombian Government, through its Ministry of Work, enacted a Decree by means of which the goal of having a joint negotiation scenario for CBAs in Colombia was revisited, at least from a legal perspective. The regulation seeks to regulate the situation of multiplicity of unions in a single company / employer towards the collective negotiation proceeding, by establishing the possibility for them to attend the negotiation as a unique bargaining mass, in which all unions (industry, minor, etc.) are duly- represented. All petition sheets of the unions will be regrouped and will form a single sheet with as many chapters as unions are present in the company. The Decree became enforceable in January, 2014, and regulates the situation in which all unions, even if they manage to agree to participate in the negotiation as one, cannot agree on the make up of the bargaining committee. However, from the wording of the Decree it is understood that Unions are not obliged to attend the negotiation collectively and, in any case, it missed to regulate the situation in which unions cannot agree on the subject.
Additionally, the Decree established an obligation on employers / unions and Arbitration Panels (the ones in charge of solving the collective conflict if the parties does not reach an agreement in the claims of the petition sheet) to progressively structure the dates of the CBAs / arbitration awards, seeking the effectiveness of the joint negotiation principle (e.g. to ensure all CBAs / arbitration awards to have the same expiration date, in order for all unions to negotiate as a single mass, as prescribed in the Decree).
The voices of rejection and support towards the Decree were immediate. Employer organizations welcomed the Government's initiative since in their view it contributes to the improvement of the socio-professional dialogue, avoids the fragmentation of the union movement, contributes to having more efficient CBAs and solves the recent tensions between employees and employers in collective bargaining situations. Some Unions rejected the regulation because they consider it to not be in accordance with the basic principles of the fundamental rights of association and collective negotiation preserved by ILO. It was branded as a government ploy to destabilize the trade union movement.
The Decree was reviewed and approved by both employer and union organizations in Colombia, prior to its enactment. It is necessary to point out however, that both employers and unions noted that at least from a practical perspective, the Decree is a response to the political actions of the Constitutional Court and is a reflection of the fact that it is necessary to review the principles and ideals of former legislators to solve problems caused by extreme legal interpretations of mandatory provisions.
Given the novelty of the Decree, the nature of collective bargaining in Colombia, and the fact that the Decree regulates situations that are not common in Colombian companies (multiplicity of unions tending to regulate their collective relationships), its implementation has been quite rare and, to date, we are not currently aware of any disputes before the Courts on the subject. Based on the goal of the collective relationships in Colombia, the trend to unify, regulate and regroup collective negotiations seems to be, from a preliminary standpoint, improving current issues of Colombian CBAs.
The concentration of collective bargaining allows the employer to discuss unified and sustainable employment conditions, which will allows them to plan for future costs and eventual improvement for the subsequent enforcement periods, without having to stay alert for "surprise negotiation proceedings" from minor unions not aligned with the majority's ideology. However, as the ability of minor unions to begin negotiation proceedings was not restricted (in accordance with the wording of the Decree), the possibility of "surprise negotiation proceedings" remains.
As for the obligation of progressively structuring the dates of CBAs / arbitration awards to motivate joint negotiation, an issue will occur whenever new unions seek negotiation of their CBA during the enforceability period of a preexisting CBA (e.g. Union 1 negotiated a five year CBA and Union 2 is seeking negotiation of its own CBA in the third year of Union 1's 5 year CBA), as both parties in the negotiation will be obliged to structure the new CBA's enforceability date in accordance with prior CBA's expiration date to motivate joint negotiation in accordance with the Decree. However, as freedom of association and negotiation are the base legal grounds of the bargaining proceeding, it is foreseeable that unions will not easily agree on having a short-term CBA in these scenarios, much less if they managed to negotiate suitable annual benefits for their affiliates. Arbitration Panel are obliged to do so and are called to duly implement the Decree's directions on the subject. In any case, as Decree doesn't contain tangible sanctions, we would not see how compliance of the Decree will be achieved.
The picture of the collective negotiation proceeding in our jurisdiction is then in movement, because of the Government's intention to rescue traditional trends on the subject while harmonizing them to actual hot topics of fundamental rights protections of Unions and unionized employees globally and, in particular, in global situations in which Colombia plays a relevant role. Dialogued agreement and Committed Consensus are the keys to success, since collective negotiations affect the State, Employer, and the Union. The Government has to assume the role of mediator to lighten the loads on both sides, to ensure the proceedings are handled in accordance with in force regulation. Conversely, employers and unions have to respectfully embrace proceedings and try to make them the driver of productivity which is required to meet their respective economic objectives and contribute to the continuous improvement of the economic policies of the Colombian Nation.