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UNCLAS BOGOTA 001751 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ELAB PGOV PHUM PREL SOCI CO
SUBJECT: POINTS OF CONTENTION IN COLOMBIAN LABOR LAW 
 
REF: A. BOGOTA 3629 
     ¶B. BOGOTA 4125 
     ¶C. BOGOTA 1544 
 
SUMMARY 
------- 
¶1. (U)  Unionists claim Colombian labor laws prevent workers 
from exercising their basic rights to associate, negotiate, 
and strike.  They want the GOC to repeal or modify Article 5 
of the Substantive Labor Code (CST), which limits the 
definition of a "worker" to someone with a labor contract; 
Article 450 of the CST, which states companies may fire 
unionists who participate in illegal strikes; Law 1210, which 
fails to define "essential public services" and restricts the 
scope of strikes; and Law 1233, which purports to level the 
playing field between Associated Worker Cooperatives (AWC) 
and direct employment.  GOC and private sector 
representatives counter that good labor law and policy 
require a balance of protections for both workers and 
employers.  The GOC and business community oppose unionists' 
proposed changes, arguing that they would drive up costs and 
reduce formal sector employment.  End Summary 
 
WORK CODE LIMITS THE RIGHT TO ASSOCIATE 
--------------------------------------- 
¶2. (U)  Unionists told us that Article 5 of the Substantive 
Work Code (CST) bars 89 percent of the workforce from joining 
unions or professional associations because it defines a 
"worker" as someone with an employment contract.  An 
employment contract must include three points: a dependent 
employer-worker relationship, defined duties and 
responsibilities, and remuneration.  Unionists want lawmakers 
to repeal or modify Article 5 to expand the definition of a 
"worker" to cover a greater percentage of the workforce. 
Sixty percent of working Colombians are engaged in the 
informal sector, while 15% work as members of AWCs or other 
types of cooperatives.  Apprentices or short-term service 
contractors account for 2%, and 12% are unemployed. 
Unionists argue that CST Article 5 conflicts with Articles 
38-39 of the Constitution guaranteeing the right of 
association and prevents full compliance with ILO Convention 
¶87. 
 
¶3. (U)  Alberto Echavarria, Vice President of the National 
Association of Industries (ANDI), argues against expanding 
the definition of a worker.  He said while AWC members and 
others without work contracts cannot join unions, they may 
"link" informally with whatever entities they choose, 
including labor unions and confederations.  Manuel Gaitan, a 
lawyer from the Ministry of Social Protection (MPS) 
Directorate General for Work Inspection, Surveillance, and 
Control, said the Colombian economy is evolving away from 
traditional employer-worker relationships to become more 
dynamic and competitive. AWCs are just one of the many 
necessary components that allow Colombian companies to 
compete internationally and create formal sector jobs.  He 
added that it would be impossible to repeal or modify Article 
5 due to business opposition. 
 
WORK CODE, THREATS LIMIT THE RIGHT TO NEGOTIATE 
--------------------------------------------- -- 
¶4. (U)  Unionists said the CST provision limiting union 
membership to workers with employment contracts also means 
collective bargaining is illegal for most workers in 
violation of ILO Conventions 98, 151, and 154.  The 
Solidarity Center's Guarnizo said CST provisions that 
guarantee collective bargaining rights and enumerate the 
rules of engagement only apply to workers who have the right 
to join unions (the 10.5% with employment contracts).  By 
law, the rest may not initiate or participate in collective 
bargaining processes.  National Union School (ENS) Director 
Jose Luciano Sanin, added that even workers with employment 
contracts often refuse to participate in collective 
bargaining due to anti-union threats, intimidation, and 
propaganda.  Guarnizo said only one million of the two 
million workers with employment contracts currently benefit 
from collective bargaining agreements. 
 
¶5. (U)  Echavarria and Gaitan told us union claims are 
exaggerated.  Many non-union workers also benefit from 
collective bargaining agreements.  They said that under CST 
Article 471, whenever a union includes more than one-third of 
the total number of workers in a company, the negotiated 
terms automatically extend to all workers whether unionized 
or not.  Additionally, Article 472 stipulates that whenever a 
union includes more than two-thirds of the workers in an 
industry, the government may extend the collective bargaining 
agreement to businesses industry-wide.  .  Echavarria and 
Gaitan confirmed that neither law applies to AWC members who 
are not considered "workers" under Colombian labor law. 
 
LAW 1210 FAILS TO DEFINE ESSENTIAL PUBLIC SERVICES 
--------------------------------------------- ----- 
¶6. (U)  Law 1210 transferred jurisdiction for determining 
strike legality from the MPS to the court system, and made 
arbitration voluntary after 60 days.  Unionists welcomed 
these changes for bringing Colombian labor law into greater 
compliance with ILO conventions and for mitigating their 
concerns over a pro-business bias in the MPS.  Still, they 
criticized Law 1210 for failing to adequately define 
"essential public services" or "minimal service provision" 
during public-sector strikes.  Sanin told us this lack of 
clarity creates a near-total prohibition on public-sector 
strikes. 
¶7. (U)  Echavarria argued that Colombian labor law fully 
complies with international conventions and recommendations 
on "essential public services," which the ILO defines as 
industries in which strikes would endanger citizens' "lives, 
health, or security."  To his knowledge, very few countries 
have defined the concept to the level of detail Colombian 
unionists advocate--explicitly legislating which sectors, or 
even parts of sectors, are "essential."  Gaitan said it would 
be too difficult to incorporate these ideas into Colombian 
labor law, because it could undermine national security. 
Katerine Bermudez, National Coordinator for the ILO 
Fundamental Rights Project in Colombia, said Congress left 
these concepts open to interpretation precisely to ensure GOC 
flexibility. 
 
LAW 1210 LIMITS SCOPE OF STRIKES 
-------------------------------- 
¶8. (U)  Unionists also complain that Law 1210 defines a 
strike as a point in the collective bargaining process, such 
that only "workers" as defined by CST Article 5 may initiate 
or participate.  Rhett Doumitt, Regional AFL-CIO 
Representative, told us that all workers, with or without 
employment contracts, should be able to strike outside the 
collective bargaining process on issues such as job safety. 
Unionists further criticize Law 1210 for failing to grant 
confederations and federations the right to strike and for 
prohibiting solidarity strikes in support of an ongoing 
strike in another company. 
 
¶9. (U)  Echavarria said chaos would ensue were strikes 
allowed outside of the collective bargaining process.  The 
current restriction is designed to provide labor an avenue 
for pursuing better conditions and protections while 
protecting businesses from politically motivated strikes. 
Gaitan said it makes sense that confederations and 
federations may not call a strike, because they are not 
directly party to collective bargaining agreements with 
companies. 
 
CST ARTICLE 450 ALLOWS COMPANIES TO FIRE UNIONISTS 
--------------------------------------------- ----- 
¶10. (U)  Unionists also called for the repeal of CST Article 
450, which allows companies to dismiss without judicial due 
process anyone who intervened or participated in a strike 
that the courts have ruled illegal.  Guarnizo and Sanin said 
that this creates a major disincentive to strike even among 
workers legally qualified under CST Article 5.  Echavarria 
said Article 450 only creates a disincentive against illegal 
strikes, and that any good labor law must contain a balance 
of protections for both companies and unions.  Gaitan said 
the grounds for declaring a strike illegal are limited to 
failure to comply with simple procedural rules within the 
collective bargaining process that are easy to follow. 
 
LAW 1233 PERPETUATES A WORKER UNDERCLASS 
---------------------------------------- 
¶11. (U)  Law 1233 (July 2008) requires AWCs to pay the legal 
minimum wage and non-wage benefits (health benefits, worker's 
compensation, and pensions) to their members, thereby 
leveling the playing field between AWCs and direct 
employment.  Still, unionists say the law continues to allow 
firms to reduce labor costs and replace union members who can 
collectively bargain with AWC members who cannot.  Doumitt 
explained that under the law AWC members are considered part 
owners, not workers, which allows AWCs (or the companies who 
control them) to require their members to pay their own 
non-wage taxes out of their earnings.  This translates into 
reduced take-home pay for the approximately two million AWC 
members.  Doumitt said AWC members typically earn half of 
what a similarly-employed union member makes. 
 
¶12. (U)  Sanin pointed to recent problems among workers in 
the palm and sugar cane sectors (see reftel A), conflict at 
the Port of Buenaventura (see reftel B), and the general 
labor environments in superstores, the apparel industry, 
floriculture (see reftel C), and the health sector as proof 
that AWCs bring about a rapid deterioration in employment 
conditions wherever they exist.  He said their substantially 
lower costs and diluted labor rights have combined to make 
them the "new model of labor relations" in Colombia, as 
evidenced by their proliferation.  The Superintendent for 
Economic Solidarity has registered about 4 million 
cooperative members.  Doumitt explained that about half of 
these are members of "legitimate" cooperatives in which the 
members exercise real control over the enterprise.  The 
remaining two million are AWC members. 
 
¶13. (SBU)  Echavarria said AWCs are viable institutions with 
a history in Colombia that predates the current controversy, 
and that many industries organize and manage them well. 
Still, he conceded that in some industries they have become a 
tool for abusing workers' rights.  He said ANDI encourages 
its members not to use them, and advises any who do to 
monitor them closely.  The MPS's Gaitan said they are an 
important component of a flexible, competitive economy. 
Moreover, many economists point to the high non-wage costs 
(approximately 80% of salary) as a reason for Colombia's 
large informal sector.  Gaitan also said the numbers of 
reported AWC members are inflated, or at least that MPS 
inspectors cannot locate the purported 2 million AWC members. 
 Still, he recognized that they lower employees' wages and 
other benefits. 
Brownfield