In Colombia all employees enjoy freedom of association, so they may form, join or leave professional organizations protecting their rights and interests as employees.
There are two different routes to recognise extralegal benefits under collective labor law in Colombia: (i) collective bargaining – between employers and unionized employees and, (ii) collective pacts – between employers and non- unionized employees.
The constitutional legislation incorporates Agreement No. 87 of the International Labor Organization (ILO) regarding the right of employers and employees to constitute the organizations they deem convenient, as well as affiliating with these organizations. In addition, employees and employers organizations are entitled to draft their own administrative statutes and regulations, elect freely their representatives, and organize their management and activities.
In Colombia, private sector unions are weak. The tendency has been to reduce affiliations due to a series of factors, including the high rates of unemployment in Colombia and recent labor reforms liberalizing terms and conditions of employment.
Under Colombian collective law, trade unions may be affiliated with a company, industry, or guild of various occupations. Company unions are the most common: they are formed by people of different professions, jobs, or specialisms who render services to the same company or institution.
Trade unions covering multiple occupations can only be formed when there are no other workers performing the same activity, profession, or occupation in the minimum number required to constitute a guild union, and only for as long as that condition is met.
Industry unions are formed by workers belonging to the same industry but employed by different employers. Usually, these unions have national coverage and are active in Colombia's political world. The industries in Colombia with the strongest unions are: oil, tobacco, metal, electrical, and textile. The public sector also has well-organized unions, such as the telecommunications sector.
Trade unions cannot have as their purpose the exploitation of businesses or activities with profit-making aims.
Constitution of Trade Unions
In order for a trade union to exist, it must have at least 25 affiliated employees. To join a union, employees must be at least 14 years old and perform a labor–related activity. These requirements must be certified at the initial constitution meeting where employees declares their intent to become unionized employees, and sign a foundation minute. The foundation minute is one of the requirements that must be fulfilled to register the trade union before the Ministry of Work.
Once the constitution assembly has been held, the employees must inform their employer and the Ministry of Work about the constitution of the trade union, identifying each of its founders. This is a formality that should be undertaken promptly for the constitution act and the union privileges to take effect. However, omitting to do so neither invalidates the foundation of the union nor obstructs its registration.
In the constitution assembly and in future meetings, the statutes of the trade union must be discussed and approved and the directors of the union must be appointed. Minutes must be subscribed to evidence the approval of the statutes and the election of union directives.
Pursuant to the constitution assembly, the trade union will automatically have legal capacity. However, in order for the unions to act validly before third parties, they must register before the Ministry of Work. This registration must be performed within five business days from the constitution assembly meeting, although there are no legal consequences if the registration is not submitted in this time frame. Once the request for registration is received, the Ministry of Work has 15 business days to admit or deny its registration.
Employees can constitute and be members of more than one company union; furthermore, they can be affiliated with different unions of the same classification or activity. From the employer’s perspective, such situations, in practice, may represent an increase in union privileges. However, in the long-term, union organizations may weaken as they proliferate.
Traditionally, Colombian regulations prohibited multiple affiliations with unions of the same classification or activity. Per ruling C-797 dated June 29, 2000, the Constitutional Court declared that the provisions containing such limitations were unconstitutional, as they threatened the principle of freedom of association.
Decree 2351 of 1965, which amended the Colombian Labor Code, prohibited the coexistence of more than one base union within the same company. However, such prohibition was also declared unconstitutional by decision C-567 dated May 17, 2000. In this case, the Constitutional Court considered that an employee’s right to constitute union organizations as well as their effective enjoyment of union freedom was being limited.
The general role of the trade unions
The general role of trade unions in Colombia is to protect affiliated employees’ labor rights and ensure better economic and employment conditions for the employees and their families.
Prior to 2008, the Colombian Labor Code provided that when, within a single enterprise, a base or company trade union coexisted with an industry or guild union, the union with the majority of the workers of that company would represent the employees for collective bargaining purposes. Per ruling C-063 dated January 30, 2008, the Constitutional Court declared that this provision to be unconstitutional, as it unreasonably and disproportionately limited the collective bargaining or negotiation right for minority trade unions. Therefore, all the unions related to the enterprise are allowed to participate in the negotiation process.
In addition, legislation has conferred the following roles on trade unions:
- Study the characteristics of the respective profession and wages, benefits, fees, or protection systems to prevent accidents and other working conditions relating to their affiliated employees to pursue their improvement and their defense.
- Propel the rapprochement between employers and workers on the basis of justice, mutual respect, and subordination to the law.
- Execute collective bargaining agreements and union contracts, ensure compliance by their members, and exercise the rights and actions that arise from them.
- Advise affiliated employees in defending the rights derived from their labor contracts or their professional activities, and represent them before the administrative authorities, employers, or third parties.
- Represent in court or before any authorities or agencies the common economic interests of the general association or the respective profession, and represent those interests before the employers and third parties in the event of collective conflicts that could not be resolved by direct settlement, by seeking conciliation.
- Promote technical education and general members.
- Provide relief to members in case of unemployment, sickness, disability, or calamity.
- Promote the development of cooperatives, savings banks, loans and mutual aid, schools, libraries, technical institutes, placement offices, hospitals, field trials or sports, and other appropriate agencies for professional, cultural, and solidarity purposes established in the statutes of the union.
- Be intermediaries for the purchase and distribution of consumer goods, raw materials, and working elements.
- Acquire and hold title to any property and furniture required for the exercise of all activities.
The scope of trade union rights in businesses
Unions are authorized by law to enter into collective bargains on behalf of employees affiliated with the union. By means of bargaining agreement, unionized employees negotiate with their employers greater labor benefits for them and for their families. No more than one collective bargaining agreement may exist in each company. In addition to the provisions agreed upon between the parties, the collective bargaining agreement must indicate the enterprise or establishment, industry and trades covered, the place or places where it is to govern, the date on which it takes effect, its duration, the causes and methods of its renewal and termination, and the responsibility for non-performance.
The collective bargaining agreement must be in writing and produced in as many copies as the number of the parties, plus one, to be deposited with the Ministry of Work. The bargaining agreement shall be invalid until these formalities are complied with.
Collective bargaining between employers and labor unions, whose members do not exceed one-third of the total number of workers of the given enterprise, is applicable only to members of the union that executed the bargaining agreement, and to those who adhere thereto or subsequently become members of that union. When one of the parties to the bargaining agreement is a union whose members exceed one-third of the total number of workers of the given enterprise, the provisions of the bargaining agreement extend to all workers of the enterprise, whether unionized or not.
Within 60 days prior to the date of expiration of the collective labor convention, either party can propose a date for the collective negotiation by submitting a petition sheet with the proposed stipulations for the new bargaining agreement (this is commonly known as “denunciation” of the collective labor convention).
With such denunciation, the collective conflict commences with three representatives appointed by the union and by the employer to enter into discussions within five days following the presentation of the petition sheet. This negotiation stage is called “direct agreement;” and lasts for 20 calendar days, which may be extended upon mutual consent of the parties up to another 20 calendar days. If the parties reach an agreement, they must record it as the new text of the collective bargaining agreement, therefore terminating the collective conflict. When differences continue after conclusion of the direct arrangement stage, the employees may opt to declare a strike or to submit their differences to arbitration.
Works Councils do not exist in Colombia.
Trade unions cannot directly or indirectly restrict freedom of work. It is forbidden for trade unions of all kinds to:
- Directly or indirectly compel workers to join the union or retire from it, except in cases of expulsion on grounds provided for in the statutes and fully proved.
- Invest any social funds or assets in purposes which are different from those of the association or, even if invested for these purposes, involve expenditures or investments that have not been duly authorized in the manner provided by law or the statutes.
- Promote cease or stoppages at work, except in cases of strike in accordance with the law, and of strike attributable to the employer for breach of obligations towards its workers.
- Promote or support campaigns or movements designed to de facto ignore collectively, or particularly by the members, the legal precepts or acts of a legitimate authority.
- Recommend or sponsor any act of violence against the authorities or in prejudice of employers or third parties.
Sanctions for the above-mentioned breaches are as follows: (i) If the breach is attributable to the same union, constitutes an act of their directives, and the infringement has not been committed, the Ministry of Work will force the union to reverse its determination; (ii) if the offence has already been committed, or if the order to avoid the offence was not obeyed, the Ministry of Work will proceed to impose fines equivalent to 1 - 50 times the minimum monthly legal wage; or (iii) if despite the fine, the union persists in the violation, the Ministry of Work can apply to a labor court to dissolve and liquidate the union, and cancel the registration of the association.
Applications for dissolution, liquidation, and cancellation of registration of association must be made before the labor judge in the domicile of the labor union, according to the following procedure: (i) the request made by the Ministry of Work should present a statement of facts and evidence that supports the facts; (ii) once the request is received, the judge, no later than the next day, shall notify the trade union; (iii) the union, after notification, has five days to answer the demands and submit evidence deemed relevant; (iv) the judge will rule on the evidence within five days; and (v) the judge's decision may be appealed before Superior Court, which must decide within five days after receiving the process.
If the act or omission is attributable to any of the directors or members of the union, and has committed the act or omission in his/her capacity as such, the Ministry of Work will notify the union to implement disciplinary sanctions provided for in the statutes. After expiration of the term specified in the order of the Ministry of Work, which shall not exceed one month, without penalties, it is understood that there is a breach of the union.
Trade union employee protection rights
Unions leave is guaranteed by law to ensure proper management by union representatives. For private sector employees, union leave is established from two perspectives: as an obligation of employers in execution of the labor contract, and as a means to allow the performance of the activities related to the management of the trade unions. Union leave can be created or agreed to through collective bargaining. When a conflict between the union and employers is decided by Arbitration Court, the arbitrator can create union leave, if and only if, it does not have the nature of permanent leave.
For public employees, the law does not authorize the granting of union leave.
Colombian labor laws provide that employers cannot unilaterally terminate employees based upon their trade union membership. Union privilege provides employees with labor stability, and impedes dismissal, diminishment of labor conditions, or transfers to other facilities or different places of work, without just cause qualified by a labor judge.
There are several types of union privileges for founders or directors of a union. Founders are guaranteed labor stability from the day of constitution of the union until two months after its registration (which cannot exceed six months). Directors are guaranteed labor stability for the term of their appointment plus six months, which applies to the following employees: (i) the principal and alternate members of the board of members and vice-directors of any trade union, up to a maximum number of five principals and five alternates; and (ii) one principal and one alternative member of the sectional committee.
There is a special union privilege called “circumstantial,” which protects employees presenting the petition sheet (unionized employees and beneficiaries). In these cases, the protected employees cannot be dismissed without just cause during the period of presentation of the petition sheet until the termination of the collective conflict.
Colombian labor law provides a special labor proceeding, through which employers request authorization from the labor judge to terminate the employment agreement of these protected employees with just cause. If an employee with union privilege is dismissed without authorization from the labor authority, termination of employment has no legal effect, and the employer will be obliged to reinstate the employee with the payment of salaries and social benefits owed for the period of unemployment.
Article 56 of the Colombian Constitution recognizes the right to strike as fundamental. Employers are not permitted to use strike-breakers.
Only in cases expressly excluded by law will a strike be deemed illegal (possibly resulting in the dismissal of union officers), including the following:
- When incurred in essential public service entities.
- When it pursues purposes other than professional or economic ones.
- When the stages to legally vote for a strike have not been complied with.
- When it exceeds the legal term or duration.
- When it is not limited to the peaceful suspension of work.
- When it demands from the authorities the execution of some act which falls within the union’s functions.
Pursuant to Article 429 of the Colombian Labor Code, a strike is defined as a collective, temporary, and pacific suspension of work, by the workers of an establishment or enterprise, for economic and professional purposes, proposed to their employers, and following the legal procedure to invoke it.
Currently, the right to strike in Colombia is mainly determined by the existence of a collective conflict. The date (or stage) of the strike must be decided by the union members within 10 days following the failure to resolve the issues after negotiations in accordance with the procedure set forth under the law.
The decision to go on strike requires the affirmative vote of the majority of the employees of the given enterprise (or of the union members when such members make up more than half of the employees of the given enterprise). Strikes are only legal if they begin 2 to ten days from the date of the resolution authorizing a strike.
The Ministry of Work and the President can intervene in disputes through compulsory arbitration when the strike is declared illegal or exceeds 60 calendar days.