Collective bargaining relationships in Colombia have been ruled and governed, mostly, by several rulings of our Supreme and Constitutional Courts. Even though our Substantive Labor Code provides a whole book relating to Collective Labor Relationships in Colombia, the fact that our Courts have removed several of those provisions (or at least some of the most important) from our legal system (on the basis that they are not in accordance with our constitutional principles), implies that the legal basis for collective relationships in Colombia is founded mainly in recent case law.
The latest of these court rulings removed Section 2 of Article 357 of our Substantive Labor Code. This stated that when a company had both a base trade union (i.e. one formed only with employees from the same company) and an industry trade union (i.e. one that represents employees from different companies within the same industry), collective negotiations were to be handled by the trade union which represented the majority of employees in the company.
The court decided that, in accordance with our political constitution and international regulations on the subject (e.g. ILO treaties and recommendations) every union has the freedom to negotiate and initiate its own collective negotiation process and should not be subject to another union´s representations, as this would be considered a breach of its collective negotiation right, which is considered a fundamental right in our jurisdiction.
Even if the arguments of our Constitutional Court are accurate from a strict legal and constitutional standpoint, it is clear from the Court's analysis that it did not intend that the removal of this article would result in the increase in collective bargaining agreements in Colombia, or within the same company. However, subsequent interpretation of our legal system since the removal of this article, supported by misguided ruling of our Supreme Court of Justice, means that currently in Colombia we have no legal instruments to avoid multiple collective bargaining agreements within the same company.
Since the implementation of a legal structure regulating collective labor relationships in Colombia, legislation has tended towards the collective legal principle “one company, one collective bargaining agreement”. However, this statement no longer applies. Now within a company you can find as many collective bargaining agreements as there are trade unions.
This presents a very practical problem for employers. With multiple collective agreements, an employer may struggle to provide and guarantee equal treatment for all employees. The employer will not be in a position to guarantee that the outcome of each union collective negotiation will result in equal rights, and this is likely to lead to difference terms and conditions within the company (even between employees in the same position, performing the same activity).
At the same time, the applicability of such collective bargaining agreements could be in jeopardy, as employees working for companies with multiple collective bargaining agreements could call for the most favorable sections of each collective bargaining agreement relevant to their employment. In this situation, even if our Courts have outlawed this possibility, employees may in any case try to file a constitutional action (established for protection of constitutional rights such as equality) to seek equal treatment with other employees.
As is clear, the breach of the collective principle ("one company, one collective bargaining agreement”) even if founded in a strong constitutional basis, halts the advancement of collective regulations in Colombia and presents practical difficulties for employers that could hinder labor relations.
However, our view is that the fact that each union in a company may conduct its own collective negotiations, does not mean that the employer is obliged to execute as many collective bargaining agreements as there are unions. The Conventional Bargaining Agreement Unity principle shall prevail, as it was not removed or banned from our legal system by our Supreme and Constitutional Court, and as such, only one collective bargaining agreement shall be enforceable in each company.
This means that minority unions are not subject to other union´s motivations, needs and interests within the negotiation process with the employer. Minority unions are free to express their own requests to the employer, based on their particular needs and the needs of their members. However, all parties (not just those involved in each negotiation process), that is, the employer and all unions legally established within its company, should direct the collective negotiation process towards agreeing a single collective bargaining agreement which reflects the collective negotiations and successes of each union involved in the process. By said means, the collective struggle of each union will benefit all others, to the fullest extent possible.
The legal quest for trade union autonomy cannot, by any means, sacrifice or go against the democratic principles of our legal system or indeed the economic order of our companies. Multiplicity of collective bargaining agreements within a single employer causes great harm to collective relationships in Colombia, as employment relationships would be severely compromised. Jurisprudential criteria should be modified accordingly and new regulations issued to prevent situations that may compromise collective relationships in Colombia.
It also must be noted that since executing the Free Trade Agreement, Colombia has been regarded by the continent as the upholder of labor rights in its jurisdiction. The Conventional Bargaining Agreement Unity must prevail to give rise to a structured collective legal system that provides our jurisdiction with the desired standards in collective matters.