Brief Description of Employees’ and Employers’ Associations
The possibility for employers and employees to associate through trade unions and employers’ associations is guaranteed as a constitutional right. While this allows for the existence of employees’ and employers’ organisations, employers’ organisations are not very common, nor are they generally used for collective bargaining, but rather for economical and coordination purposes within an industry. Collective bargaining is reserved for employers (individually considered) and trade unions.
There are three types of trade unions: (i) Company union, which gathers employees of the same company, regardless of their profession or position; (ii) Industry union, which gathers employees of the same economical sector disregarding their profession, position or employer; (iii) Gremial union, which gathers employees of the same profession regardless of their position or employer. For any of these types of trade unions to exist, a minimum number of 25 affiliates is required.
Employees can affiliate to multiple trade unions, even within the same company. The collective bargaining process must be done with every trade union within the organisation, disregarding their number of affiliates. Nowadays, and as a result of the Constitutional Court’s case law, there are no specific rules regarding representativeness for trade unions for the collective bargaining process, or any other matter on claims or conversations with the employer.
Rights and Importance of Trade Unions
While it is not mandatory to be a member or constitute a trade union in Colombia, trade unions may negotiate, on behalf of their affiliates, to begin a collective bargaining. This process can only be initiated by the trade union; employers cannot call for a collective bargaining process.
The result of this negotiation between trade union and an employer is a collective bargaining agreement. These documents generally provide for special rules and benefits applicable for the unionised members, and if the trade union reunites the required majority (this may vary depending on the trade union representation within the company) of affiliates within the organisation, the collective bargaining agreement can be applicable to all employees, disregarding if they are affiliated or not.
As mentioned above, in Colombia there are no specific rules regarding representation for trade unions. Therefore, every trade union disregarding the number of affiliates enjoys the same rights for collective bargaining.
Trade union members may enjoy special protection in specific cases (i.e. during the collective bargaining process) and special permits for union purposes. This is important, because Colombia’s labour law does not provide for any law regarding employees’ participation in employer’s decisions, other than through trade unions, and therefore these organisations serve as the main body for this purpose.
Labour procedural rules allow trade unions to present claims on behalf of their members whenever they consider the existence of a breach of the collective bargaining agreement.
The right to strike is recognised as a constitutional right and its exercise must be made in accordance with democratic principles. In general, strikes can come as a result of three situations: (i) a failed collective bargaining process, where its definition and practice are regulated by law; (ii) as a result of a breach of legal and/or conventional rights by the employer (in this case, the exercise of the right to strike does not require a previous collective bargaining process); and (iii) strike by solidarity where a trade union clings to the strike of another trade union, because of economic and/or political reasons.
Limitations on the right to strike apply to essential public services, as defined by law (i.e. public utilities sector).
The peace agreement signed with the FARC guerrilla includes the commitment of the government to propose new legislation related to social protest, which may modify the actual conditions of the right to strike in Colombia.
Types of Representation
Colombian labour law does not establish any law regarding the participation of the employees as representatives other than the role that trade unions serve for their members. While some improvement has been made in the last decade to involve employees’ participation, these are meant for certain cases such as harassment in the workplace and health and safety committees, and are not intended to apply to specific roles of communication regarding general decisions that the employer is considering.
- Number of Representatives
The representatives of a Trade Union are the members of its Executive Board, and its quantity should be established in the Union Bylaws, but only 10 of them will have the employment stability recognised to their position (“fuero sindical”). In addition, every company with at least one employee affiliated to a trade union must have a Complaints Committee, from which 2 members will have the same stability mentioned before – “fuero sindical”.
- Appointment of Representatives
The Union Bylaws should establish the democratic mechanisms for the election of the Union’s Executive Board members, and such mechanisms should guarantee the secrecy of the vote. Regardless, no employer representative or company’s directive personnel can be part of the Union Board.
The members of the Complaints Committee should be elected by the unions with any affiliate working for the employer, using a democratic mechanism established by them. In any event, there will be only one Complaints Committee in each company, irrespective of the number of unions with affiliates in the company.
Tasks and Obligations of Representatives
As mentioned before, trade unions are the traditional vehicle for employees to be part of the employer’s decision-making practice, which is achieved through a collective bargaining process. Therefore, even when the tasks and obligations of the Executive Board are not indicated in the regulation, they should be established in the Union Bylaws with the aim of realising that purpose: acting on behalf of the interest of unionised workers before the employer.
With respect to the Complaints Committee, the main purpose is filing complaints with the employer on behalf of the unions and the employees, either as joint or single petitions.
Employees’ Representation in Management
Employees do not have any restriction on being part of the Board of Directors of the company. In any case, the employer and their representatives will preserve the managerial power over the employees.
Other Types of Employee Representative Bodies
The 1295 Decree of 1994 established the obligation for every employer to constitute a health and safety committee, wherein the number of members varies according to the number of employees of the Company. Its composition is by an equal number of employer’s representatives and employees’ representatives.
The 1010 Act of 2006 established a mandatory harassment committee to address possible conducts considered as such, and to develop activities to improve the working environment for all employees. The number of members of this body varies according to the number of employees of the company. Its composition is by an equal number of employer’s representatives and employees’ representatives.