Colombia: Draft Decree on Multilevel Collective Bargaining
The Ministry of Labour has presented a draft decree introducing a multilevel collective bargaining framework. Although framed as a regulatory measure, its content goes beyond the scope of the Executive’s regulatory authority and represents a substantial reconfiguration of Colombia’s collective bargaining system.
The draft decree creates new bargaining levels, expands the effects of collective agreements and arbitration awards, limits existing legal figures, and imposes obligations without legal foundation — all with significant consequences for unions, employers, and workers.
Constitutional and Legal Context
Article 39 of the Constitution guarantees workers’ right to form unions without state interference, ensuring their autonomy and adherence to democratic principles. Article 55 recognizes collective bargaining as a fundamental right and an essential mechanism for regulating labour relations.
The Council of State has repeatedly held that the Executive’s regulatory authority is instrumental and subordinate: it cannot create new obligations, alter the scope of legal institutions, or regulate matters not established by law.
These principles safeguard both union autonomy and legal certainty for employers, defining who is authorized to bargain, the effects of agreements, and their application. Any regulatory attempt to alter this balance introduces uncertainty into Colombia’s collective bargaining framework, directly affecting labour and union management in companies.
Under Article 189.11 of the Constitution, the President’s regulatory power is limited by two criteria:
- Competence: The Executive cannot create, modify, or abolish institutions reserved to law.
- Necessity: Regulations are valid only when the law requires them for implementation; if the legal rule is complete, no regulation is warranted.
Main Effects of the Draft Decree
The draft decree introduces several measures that exceed the Executive’s regulatory authority and have significant implications for collective bargaining:
Creation of new bargaining levels (sectoral, regional, and group-level) not provided for in the Labour Code, shifting bargaining from the direct employer-union relationship to broader sectors or regions. As a result, unions and employers may become subject to agreements or arbitration awards from negotiations wherein they did not participate.
Generalized binding effect of sectoral and regional agreements, extending them erga omnes despite the Labour Code allowing such extension only in exceptional cases.
Restriction on collective pacts and multi-individual agreements, which are recognized as constitutional by the Constitutional Court (Decision C-284 of 2021), provided they are not used to undermine unions. The decree would prohibit them entirely when a higher-level agreement exists, effectively eliminating a lawful mechanism by regulatory means.
Mandatory contributions from non-unionized workers who benefit from higher-level agreements, disregarding the negative dimension of freedom of association — the right not to join or contribute to a union. Such obligations can only be established by law, not by decree.
Expansion of arbitration powers to cover disputes in multilevel bargaining contexts. Since labour arbitration is an exceptional jurisdictional function defined by law, extending its scope by regulation would alter the legal limits of judicial authority.
New rules on representativeness and uniform validity periods of collective agreements, making participation in bargaining contingent on the number of members and forcing all agreements to align with the first one signed. This interferes directly with the autonomy of the parties and removes their ability to negotiate terms independently.
These measures would eliminate flexibility in labour relations and subject companies to a rigid, government-imposed framework that overrides legitimate collective bargaining processes.
Conclusion
The Draft Decree on Multilevel Collective Bargaining clearly exceeds the Executive’s regulatory powers and modifies institutions that fall within the exclusive competence of Congress.
If enacted, it would create a new model of collective bargaining characterized by greater rigidity, increased economic burdens, weakening of union democracy, and a high degree of legal uncertainty for employers.
