Labor Enforcement Sought Against Colombia as USTR Sees Progress, Challenges
The AFL-CIO and five Colombian labor organizations have filed a petition with the Department of Labor alleging that Colombia has failed to comply with labor obligations in its free trade agreement with the U.S. The petition comes a month after the U.S. issued a report praising Colombia for its progress on labor rights but noting that more still needs to be done.
The petition asserts that the government of Colombia has been out of compliance with its labor obligations under Chapter 17 of the U.S.-Colombia Trade Promotion Agreement “since the first day the TPA went into effect.” Specifically, the petition alleges that Colombia has (1) failed to effectively enforce its labor laws through a sustained and recurring course of inaction and action in a manner that affects trade and investment, (2) waived or otherwise derogated from its laws and regulations in a manner affecting trade or investment, (3) failed to adopt and maintain in its laws and regulations, and practices thereunder, the rights stated in the International Labor Organization Declaration on Fundamental Principles and Rights at Work, (4) failed to ensure that proceedings in its administrative, judicial or labor tribunals are transparent and do not entail unwarranted delays, and (5) failed to ensure that final decisions from its tribunals are made available without undue delay.
The Office of the U.S. Trade Representative recently issued a report marking the five-year anniversary of the Colombian Action Plan Related to Labor Rights, which was negotiated in conjunction with the TPA and designed to address labor issues that previously had seemed intractable, such as violence and discrimination against trade union members, impunity for acts of labor-related violence, delays and backlogs in the program to protect threatened unionists, widespread fake worker cooperatives used to undermine workers’ rights, and illegal use of collective pacts negotiated with individual workers to weaken unions and avoid collective bargaining. The report asserted that Colombia has made “meaningful progress” in a number of areas.
- 589 union members are in Colombia’s national protection program and none have been killed since the National Protection Unit’s inception in 2011.
- There are 22 prosecutors focusing exclusively on cases of violence against unionists and labor activists with the support of approximately 80 judicial police investigators.
- In January Colombia handed down a 22-year sentence against the man convicted of murdering a union leader in 2014, and in two landmark cases in 2013 Colombian courts convicted “intellectual authors” of the 2001 murders of three union leaders and sentenced them to 38 years and 17 years in prison, respectively.
- The average number of union member homicides per year dropped from close to 100 from 2001 to 2010 to 26 since 2011, including 18 in 2015.
- The number of unlawful cooperatives has dropped significantly. After many employers shifted to other forms of subcontracting, the government issued decrees to combat unlawful union contracts and explicitly target alternative forms of unlawful subcontracting.
- The government’s labor inspectorate has more than doubled in size and most positions have been filled.
- Between January 2012 and October 2015 $8 million in fines were levied for unlawful subcontracting but the number of fines imposed in five priority sectors (palm oil, sugar, mines, ports and flowers) is comparatively low and fine collection has been slow. Colombia recently signed an agreement to transfer fine collection to a for-profit agency.
- More than 90 percent of sugar cane cutters who previously worked in unlawful cooperatives have formed unions and negotiated collective bargaining agreements with subsidiaries of the main sugar processing companies. More than 400 workers in the palm sector previously in abusive third-party contracting arrangements now have direct contracts with their employer.
- In 2015 the DOL stationed a labor attaché at the U.S. Embassy in Bogotá, one of only two such attachés in the world at present.
- DOL is funding a $9.8 million project from 2012-2016 that has provided extensive training to all 800+ labor inspectors and has designed and monitored the implementation of nine technical tools for use by inspectors.
However, USTR’s report also noted the challenges that remain.
- Decisions on requested protection should take no more than 30 working days but in 2015 took an average of three months.
- There have been 130 labor homicides since 2011 but only seven convictions.
- Threats against labor leaders and activists are often difficult to trace and progress on prosecutions in these cases remains slow.
- Charges have been filed in five of the 278 cases pending under the 2011 reforms to Criminal Code Article 200 (one of which is currently on trial) and two other cases have been successfully settled with the prosecutor.
- Labor inspectors undertook 54 investigations for illegal subcontracting in five priority sectors in 2014 but only one fine was imposed. Labor groups have expressed concerns that the Ministry of Labor is shifting from imposing fines to simply notifying employers of their legal obligations to comply with the law.
The labor group petition highlights many of the same problems and therefore calls on the U.S. government to immediately conduct a thorough, wide-ranging investigation into Chapter 17 violations, initiate labor consultations under the TPA with Colombia, and invoke the agreement’s dispute settlement process if consultations fail to bring about full compliance within a year.