**Statement by José Luciano Sanin Vásquez**

**Director of the *Escuela Nacional Sindical* ("National Labor School")
of Colombia**

**House Committee on Education and Labor**

**Honorable George Miller, Chairman**

**"Examining Workers' Rights and Violence against Labor Union Leaders in
Colombia"**

**February 12, 2009**

Colombia is in the midst of a very serious and unique situation of
hostility towards the exercise of labor union rights and freedom of
association. A few statistics are sufficient to demonstrate this fact:

**1. Violence against labor unions in Colombia**

One union worker has been murdered approximately every three days over
the past 23 years, which translates into 2,694 murder victims between
the first of January of 1986 and December 31, 2008.

Despite the great emphasis the current administration is placing on
security, after a few years of declining murder rates, violence against
labor unions showed a steep increase in 2008 of 25%, going from 39
murders in 2007 to 49 in 2008. In addition, it is very serious that in
2008, the number of murdered labor union leaders was 16, compared to 10
murdered in all of 2007.

More than 60% of the all murdered unionists in the world are Colombians.
The murder rate of unionists in Colombia is five times that of the rest
of the countries of the world, including those countries with
dictatorships that have banned union activity.

Violence against the union movement in the last 23 years has included
9,911 acts, in violation of the right to life, integrity and freedom of
union members, one act of violence everyday. The highlights of these
acts include 231 assaults on union leaders and 193 cases of forced
disappearance. At least 4,200 unionists have received death threats
because of their union activity, and 1,478 have been forced to leave
their homes.

  --------------------------------- ----------------------- -------------
  **VIOLATIONS OF THE RIGHT TO                              
  LIFE, LIBERTY AND PHYSICAL                                
  INTEGRITY OF UNIONISTS IN                                 
  COLOMBIA**                                                

  **January 1, 1986 to December 31,                         
  2008**                                                    

  **Type of Violation**             **Number of Cases**     **%**

  ILLEGAL HOUSE SEARCH              43                      0.4

  THREATS                           4,200                   42.4

  ASSAULT WITH OR WITHOUT INJURY    231                     2.3

  DISAPPEARANCE                     193                     1.9

  FORCED DISPLACEMENT               1,478                   14.9

  ARBITRARY ARREST                  587                     5.9

  MURDER OF A FAMILY MEMBER         3                       0.0

  MURDERS                           2,694                   27.2

  HARASSMENT                        246                     2.5

  OTHERS                            2                       0.0

  KIDNAPPING                        161                     1.6

  TORTURE                           73                      0.7

  **Total**                         **9,911**               **100**
  --------------------------------- ----------------------- -------------

# 

# Of the 9,911 violations perpetrated against the life, liberty and physical integrity of unionists in Colombia between January 1, 1986 and December 31, 2008, 3,470, equaling 35%, have occurred during the administration of the current president of Colombia, Álvaro Uribe Vélez. 

# 

# Of the 2,694 murders of unionists in Colombia during that same historical period, 482, equaling 18%, have occurred during this administration. These figures contradict the administration's assurances to the international community that the problem of violence against labor unions has been overcome, and the government has it under control. 

  ------------------------------- ----------------------- ---------------
  **VIOLATIONS OF THE RIGHT TO                            
  LIFE, LIBERTY AND PHYSICAL                              
  INEGRITY OF UNIONISTS IN                                
  COLOMBIA**                                              

  **August 7, 2002 to December                            
  31, 2008**                                              

  **Type of Violation**           **Number of Cases**     **%**

  ILLEGAL HOUSE SEARCH            23                      0.7

  THREATS                         2,083                   60.0

  ASSAULT WITH OR WITHOUT INJURY  65                      1.9

  DISAPPEARANCE                   30                      0.9

  FORCED DISPLACEMENT             316                     9.1

  ARBITRARY ARREST                254                     7.3

  MURDERS                         482                     13.9

  HARASSMENT                      175                     5.0

  KIDNAPPING                      29                      0.8

  TORTURE                         13                      0.4

  **Total**                       **3,470**               **100**
  ------------------------------- ----------------------- ---------------

The structural factors that have made violence against labor unions
possible are still in place. The increase in murders in 2008 is an
indication of that fact, as are the security plans that more than 1,500
union leaders still have in place.

The most worrisome fact is the political exclusion of the labor union
movement, which has created widespread anti-union sentiment, fostered
and exacerbated by an increasingly common and recurring practice on the
part of the President of the Republic and high-level government
officials, who make statements that undermine the legitimacy of labor
unions by linking them to guerilla groups, or justifying the violence
against labor unions as violence between the armed parties to the
conflict, thereby, suggesting that labor unions are one of these groups.

The ILO has referred to this situation for several years. Recently, at
the 97^th^ Conference (June of 2008), the Committee on the Application
of Standards stated: "(...) the Committee expressed its concern over an
increase in violent acts against trade unionists in the first half of
2008. In view of the commitments made by the Government and referred to
above, the Committee urged it to take further steps to reinforce the
available protective measures ... All of these steps were essential
elements to ensure that the trade union movement might finally develop
and flourish in a climate that was free from violence (...)"

**2. Impunity of murders of unionists**

The investigation and prosecution of crimes against labor unionists was
an obligation of the Colombian government that had been forgotten. The
Subdivision of the Public Prosecutor and the judges specializing in this
area constitute the government's first effort to respond to the critical
situation of human rights and violence against the labor union movement.

However, 2,694 unionists have been murdered in the past 23 years, and
the Subdivision of Investigation has only recognized the existence of
1,302 cases to be prosecuted, and has only been able to physically
locate the case files of 1,104, which means that 60% of the cases do not
exist, or are not the subject of any reported on-going criminal
investigation.

The reports issued by the Public Prosecutor led to the conclusion that
there are no important results in terms of moving forward with the
criminal investigations. According to the January 2009 report of the
Public Prosecutor, with regard to the 1,104 cases they are
investigating, 654 cases (59.23%) are in preliminary stages. That means
that in more than half the cases, no suspect has been identified. Two
hundred and eight cases (18.84%) are in the preliminary investigation
stage, which is the stage in which a formal investigation of an
identified suspect is carried out. In 91 cases (8.24%), the Public
Prosecutor has filed charges before the judges.

With regard to the total of 1,104 cases under investigation, the number
of convictions was 120. This means that only 10.86% of the cases have
made progress in determining the responsibility of the perpetrators of
crimes against labor unionists.

With regard to the 185 prioritized cases, the number of convictions
covered only 31 victims. That is, with regard to the total number of
prioritized cases, there have been convictions in only 16.75% of the
victims' cases.

There have been convictions in just 90 cases of murdered unionists.
Presuming that there is some progress in terms of impunity for these
victims, the percentage of those whose cases remain in impunity is 96.7%
of the crimes. According to the January 2009 report, without access to
all the information provided in July of 2008, but rather just on the
basis of the numbers of convictions by judges, and assuming that each
conviction represents one victim, impunity remains at nearly 96%.

Calculating the monthly average output of the judges, between September
and December of 2007, an average of 11 convictions were issued per
month. This same monthly calculation for all of 2008 and January of 2009
yields 5.9 convictions per month. We can conclude from this quantitative
analysis of the work of the subdivision and the judges, that at the rate
of 70 convictions handed down annually by the country's judges and the
ILO sentencing judges, each one representing one labor unionist victim,
it would take the justice system around 37 years to overcome the
prevailing impunity, presuming no more murders occur starting today, and
the continued existence of the special investigation and prosecution
division.

With regard to the convictions handed down, the following matters are
cause for grave concern:

1\. The convictions have primarily identified the material authors and
their intentions. In the majority of cases, the chain of responsibility
of those responsible has not been established.

2\. In the majority of the convictions, no reference is made to the
personal context of the victim, or the union affiliation, or regional
context, in which the violence against labor unions occurred.

3\. Investigations are carried out on a case-by-case basis, with no
comprehensive investigational strategy for cases that are clearly
systematic, deliberate and selective, as are the cases of violence
against labor unions. The labor union movement has consistently proposed
changes to the methods of investigation used. Given that nearly 75% of
the violence against labor unions has been committed against 30 labor
union organizations in 6 departments of the country, the investigations
should be re-organized.

4\. The investigations fail to identify all the crimes committed and,
therefore, the convictions fail to punish the perpetrators for all of
them. In multiple convictions, for example, torture and forced
disappearance are not punished, and the perpetrators are sentenced for
the murder only. This leaves acts that constitute violence against labor
unionists in impunity.

5\. There are only convictions at the level of second instance in five
cases. That means that of the 108 convictions counted as of July of
2008, 103 could still be reversed by means of appeals the convicted
persons may file, and they could, therefore, ultimately be acquitted.

On several occasions, the ILO has referred to the matter of impunity.
Recently, during the 97^th^ Conference, June 2008, the Committee on the
Application of Standards stated: "(...) the Committee urged it (....) to
render more efficient and expedient the investigations of murders of
trade unionists and the identification of all of its instigators. Such
measures should include an enhanced investment of necessary resources in
order to combat impunity, including through the nomination of additional
judges specifically dedicated to resolving cases of violence against
trade unionists. All of these steps were essential elements to ensure
that the trade union movement might finally develop and flourish in a
climate that was free from violence (...)"

**3. Limitations and violations of Freedom of Association**

In Colombia, we have an institutional design, as well as government and
company practices that are contrary to the freedom of association. This
places a large number of obstacles in the way of the creation of union
organizations, and the free functioning of existing unions. This
includes election of representatives, modification of by-laws,
collective bargaining, striking, participation in public dialogue, etc.
The following figures are evidence of this:

**[a. Obstacles to Freedom of Association]{.underline}**

In Colombia today, there are 18,749,836 workers, of which, fewer than 3
million have the right to join a union. This is because the law
specifies that only those workers working under employment contracts can
exercise that right. This is in violation of international labor
conventions and standing ILO recommendations to the Colombian
government. Thus, only 4 of every 100 workers are affiliated with a
labor union in Colombia.

The Ministry of Social Protection, in the period of 2002-2007, denied
the registration of 515 labor union registry petitions. Of these, 253
were denials of new labor union charters.

  ------------ ---------------- ------------------ -------------- ----------- ---------------- -----------
  **Labor      **Registration   **Creation of      **Creation of  **Changes   **Revocation of  **Total**
  Union        of Board of      Sub-committees**   Committees**   to          Registration**   
  Charters**   Directors**                                        By-laws**                    

  **253**      **189**          **47**             **9**          **7**       **10**           **515**
  ------------ ---------------- ------------------ -------------- ----------- ---------------- -----------

This situation has been reported on multiple occasions before the ILO
Committee on Freedom of Association, which issued recommendations to
register these charters, as it considered these acts to constitute undue
government interference. Just by way rulings C-465, C-621 and C-672 of
2008 among others, of the Constitutional Court, the Ministry of Social
Protection lost its jurisdiction to deny registration in the labor union
registry. This is an advance that partially satisfies ILO conventions.

These rulings address only one problem, that of arbitrary government
interference at the time of registration in the registry. However, an
additional series of legal limitations of the right of association
persist in Colombia, which have not been modified. Laws that impede the
right of free association for all types of workers, Art. 5 CST, must be
modified or repealed. Likewise, laws that limit the freedom to choose
the union structure the workers see fit, Art. 365 CST, must also be
modified or repealed. The establishment of an expedited judicial
mechanism, that would provide a means of quickly resolving possible
conflicts in the registration of labor union charters and other matters
related to union representation, is also necessary.

The ILO has repeatedly made comments and recommendations in the area of
the right to free labor union association. Recently, during the 97^th^
ILO Conference, the Committee on the Application of Standards stated:
"(...) it called upon the Government to ensure that all workers,
including those in the public service, may form and join the
organization of their own choosing, without previous authorization, in
accordance with the Convention. In this regard, the Committee called
upon the Government not to use discretionary authority to deny trade
union registration..."

**[b. Collective Bargaining, a right accorded to few]{.underline}**

In Colombia, only 1.2 of every 100 workers benefit from a collective
bargaining agreement. If we compare the period of 1996-1997 with the
period of 2006-2007, we will find that in the first period, 1,579
collective bargaining agreements were signed, of which 983 were
collective contracts, 592 were collective pacts, and 5 were union
contracts, covering 462,641 beneficiaries; while in the second period,
925 collective bargaining agreements were signed, of which 639 were
collective contracts, 276 were collective pacts, and 10 were union
contracts, covering 176,948 beneficiaries. This demonstrates a
significant reduction in collective bargaining and its coverage: 285,693
beneficiaries lost their contractual guarantees, approximately 62% of
the beneficiaries of a decade ago are now unprotected. This phenomenon
is explained by the enormous legal and practical obstacles to the
existence and free operation of workers' organizations, to the lack of
promotion of bargaining, to the small number of workers able to bargain,
and to the failure of the government to modify its legislation to comply
with the labor standards of conventions 87, 98, 151 and 154, ratified by
Colombia.

The primary problems are as follows:

\- Collective pacts and extralegal benefits plans are permitted, to the
detriment of the unions' right to collective bargaining.

\- Unionization is hampered, and therefore, so is the signing of
collective bargaining agreements for workers with contracts differing
from employment contracts, Art. 5 CST. This excludes workers with
service contracts, those associated with work cooperatives, those with
apprenticeship contracts, the unemployed, workers with a regulatory
relationship with the government, and workers in the informal sector,
which make up more than 85% of the working population.

\- The Ministry of Social Protection exercises poor oversight. It does
not investigate or sanction the union-busting practices of employers,
nor does it promote the protection of the right of association and
bargaining.

\- The imposition of obligatory arbitration courts to resolve points not
agreed upon in negotiations. This is an intervention by authorities
that, in principle, impinges on, and makes collective bargaining more
difficult.

\- The prohibition of collective bargaining and striking by unions of
public employees.

\- The lack of bargaining by field or economic activity, and the
inability to bargain for different levels.

The right to promote and defend the interests of workers by means of
collective bargaining that seeks to improve working conditions is, in
current practice, illegal for some and nearly impossible to exercise for
others. This is due to legal provisions that limit or prohibit free
bargaining between the parties. This is a situation that ILO oversight
bodies have identified as contrary to the conventions ratified by
Colombia, and whose recommendations have been intentionally ignored by
the government, which has failed to take measures to promote bargaining.

**[c. Right to Strike --- its exercise is practically
impossible]{.underline}**

The right to strike is a fundamental right of all workers, used to
defend their labor rights in a peaceful manner. This right is not
absolute in nature. The ILO acknowledges that the right to strike can be
limited in those services whose interruption may endanger the life,
safety or health of a person or a portion of the population, but these
limits can only be established for democratic reasons, and those
necessary to protect the rights and freedoms of others, and always by
way of law.

In the period 2002-2007, 122 petitions of illegality of suspension of
activities were submitted to the Ministry of Social Protection, of
which, 66 were declared illegal.

Against this backdrop, we can understand why unions stage few strikes in
Colombia. The legislative limitations and the actions of the Ministry of
Social Protection demonstrate that staging a strike is nearly
impossible, because of legislation contrary to the conventions on
freedom of association. More so, if we take into account the fact that
Art. 450 num. 2 allows employers to fire workers who participate in an
illegal strike. In this context, on July 14, the Congress promulgated
Law 1210 of 2008, which modifies the provisions that regulate the
exercise of the strike in the country. Law 1210 includes only two of the
ILO's ten recommendations to Colombia in the area of strike regulation.
First, it transfers the jurisdiction the Ministry of Social Protection
formerly had, to determine the illegality of a strike to labor
jurisdiction. And second, it creates of a voluntary arbitration court,
which was formerly obligatory if a strike went beyond 60 days.

On the other hand, in violation of ILO doctrine, article 1, paragraph 2,
of this law gave the President of the Republic the authority to order
the cessation of strikes "...*If a strike seriously impairs the health,
safety, public order or economy of all or part of the population due to
its nature or scope*..."

The changes introduced by the law are procedural and not substantive.
This, being the case, going forward, judges will declare strikes to be
illegal for the same reasons the Ministry of Social Protection did so in
the past.

The most critical part of Law 1210 of 2008 is not so much what it
includes, but rather what it fails to include, given that the exercise
of the right to strike is extremely limited in Colombia, when compared
to the recommendations of the Committee on Freedom of Association (CFA),
and the Committee of Experts on the Application of Conventions and
Recommendations (CEACR) of the ILO. The following are the most serious
omissions in the law:

1\. The Colombian legislation defines the strike as a point in
collective bargaining, and not as the fundamental means of defense of
workers. It is only permitted in the process of negotiation of a list of
demands and in no other case.

2\. Contrary to the principles of freedom of association, the
prohibition of strikes by federations and confederations, or those
staged by unions by field of economic activity was not repealed. This
right remains reserved for company unions, which represents a
curtailment of the right to strike.

3\. It is necessary to define what is meant by essential public service,
and to regulate the concept of provision of minimal services. The lack
of such definitions results in near total prohibition of the exercise of
the strike by workers employed by companies that provide public
services.

4\. Changes must be made to current strike regulations such that
solidarity strikes are not prescribed.

5\. The law requires a qualified majority to declare a strike, that is,
half plus one of the workers of a company. This makes it nearly
impossible to achieve a strike declaration in practice, especially in
companies with a large number of workers or when the union is in the
minority.

6\. The omission regarding strikes for the purpose of resolving a local
or section problem must be resolved.

7\. The legislation should allow workers with contractual relationships
different from employment relationships to exercise their right of
association and their right to strike.

8\. A declaration of illegality of a strike results in the employer's
ability to fire workers, who intervene in or participate in an illegal
suspension of activities.

**4. The large deficit of good jobs in Colombia [­]{.underline}--- the
case of the Associated Work Cooperatives**

The labor policies and laws of recent years have been characterized by
maintaining the exclusion from social and labor protection of more than
two thirds of workers, and by denying and evading the minimum labor
rights of 12 million workers. The Colombian government, rather than
advancing in terms of minimum labor standards, produces legislation and
practices that are contrary to decent work, thereby, leaving nearly 70%
of workers in a situation of job insecurity. The Associated Work
Cooperatives are evidence of this situation of job insecurity.

The recent strikes of African palm workers and cane cutters, the
conflict with the workers of the Port of Buenaventura, as well as the
situation of workers in superstores, the apparel industry, floriculture,
the health sector, security guards, etc., demonstrate that the so-called
associated work cooperatives (AWC), have contributed to the
deterioration of the quality of employment in Colombia. The
organizations that have been established under the legal definition of
the AWC do not, in fact, represent cooperative principles, and they
abuse the right to cooperative association, in order to evade workers'
rights to the benefit of employers and of those who seek to establish
such organizations as fronts for employers. The so-called AWCs are
pseudo cooperatives.

The AWCs are used by companies as a form of outsourcing, that has
allowed them to transfer company costs and replace or fire workers with
employment contracts, and, in many cases, unionized workers with
collective bargaining agreements. The hugely lower cost, and an
employment relationship with no rights, resulted in the spread of the
AWCs as a "new model of labor relations" to the extent that in February
of 2008, there were 12,068 registered AWCs. In 2007, it was estimated
that there were 4,221,108[^1] AWC members.

In the face of this job insecurity, Law 1233 of 2008 was promulgated,
which had its origins in a bill presented by the government, as the
North American congress was approaching a vote on the FTA with Colombia.
The bill was limited to establishing the obligation to pay parafiscal
taxes on the part of the Associated Work Cooperatives (AWC). While this
bill was making its way through the Congress of the Republic, there were
many debates and proposals, and as a result, the law addresses
additional matters as well.

However, the government will not be able to point to this law as an
advance in relation to international demands in this area, since the
recommendations of the ILO oversight bodies have been clearly ignored.
Law 1233 does not recognize the rights of association, bargaining and
strike of the affiliates of an AWC, nor does it provide sufficient
measures to prevent the AWC from being used as a means of evading labor
and union rights. In sum, we can affirm that this law allows the AWCs to
continue to be used as tools for evading labor rights, and creating
insecure conditions for workers since it did not resolve crucial matters
such as:

1- AWC members do not enjoy the fundamental and essential rights they
would have as workers under labor contracts.

2- When hiring AWCs, companies are able to externalize payroll costs and
render them not chargeable to the company. The companies are only
responsible for what they sign off on in the commercial bid, with no
possibility even of suing them for violation of labor rights.

3- In order to avoid the costs of social security contributions,
employers prefer to hire AWCs, in which such contributions are wholly
the responsibility of the members.

4- The primary activity of the AWC is to act as a labor intermediary.
The great majority of the activities of the AWC stem from contracts with
companies as labor intermediaries, and in practice, companies replace
their workers with AWC members.

5- There is a near complete lack of oversight of AWCs. Thus, only a
small fraction of them are currently in compliance with applicable
regulations.

6- There is a lack of democratic participation of AWC members. Due to
the lack of reasonable limits on the terms of the administrative boards
of the AWCs, many members believe that the AWCs have owners instead of
administrator, since the commercial bid signed by the company and the
AWC is not subject to the approval of a general assembly of the members.

7- There is competition among AWCs to offer the worst and cheapest
contracts, which creates a sort of war for pennies among them.

8- The AWCs are used as a tool to weaken and diminish the unions. AWC
members do not have the right to unionize, because according to the
Ministry of Social Protection, they are not employees, but rather,
providers of labor.

The ILO has issued several comments and recommendations regarding
Associated Work Cooperatives. Recently, during the 97^th^ Conference
(June of 2008), the Committee on the Application of Standards stated:
"...In particular, the Committee expected that legislation would be
adopted rapidly so as to ensure that service contracts, other types of
contracts, cooperatives and other measures were not used as a means of
undermining trade union rights and collective bargaining..."

[^1]: Statist published on the web site of the superintendency for
    economic solidarity, accessed February 6, 2009