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April 15, 2012
Over the past year, the Santos Administration has made great strides to advance the protection of labor rights in Colombia. Many of the improvements are tied to the Colombian government’s implementation of the Action Plan Related to Labor Rights. In addition, the Santos Administration has carried out several ground-breaking initiatives beyond the Action Plan, demonstrating the depth of its commitment to promoting labor rights and fostering social justice. Taken together, these actions represent fundamental change and historic progress for the lives and livelihoods of workers in Colombia.
ONE YEAR LATER: MEETING THE MILESTONES OF THE LABOR ACTION PLAN
In addition to the strong labor protections contained in the United States-Colombia trade agreement, the Obama Administration worked closely with the Government of Colombia to address a number of serious labor concerns, including violence against labor union members; inadequate efforts to prosecute those accused of such violence; and insufficient protection of workers’ rights. As a result, the U.S. and Colombian governments announced on April 7, 2011, an ambitious and comprehensive Action Plan that included major, swift and concrete steps to improve the situation in Colombia. The U.S. Government has confirmed that Colombia has successfully implemented the key elements of the Action Plan, and met all of the Action Plan’s milestones to date. Below is a summary of major accomplishments under the Action Plan, as well as further steps taken by the Santos Administration to promote labor rights and fostering social justice in Colombia.
THE NEW COLOMBIAN MINISTRY OF LABOR
New Labor Ministry, New Labor Minister: Colombia has created a new Ministry of Labor, dedicated to “promoting the creation of dignified jobs … and guaranteeing good relations between workers and employees by promoting respect and protection for unions.” To lead this new agency, President Santos appointed Rafael Pardo as Minister of Labor on October 31, 2011. Minister Pardo is a national figure of significant stature who most recently served as the leader of Colombia’s Liberal Party.
Enforcing New Labor Laws and Regulations: The new Labor Ministry committed to making immediate progress in specific areas, including: 1) Addressing the illegal practice of disguising employment relationships by maintaining a work force in “cooperatives” and other entities that are not truly independent; 2) Strengthening the labor inspection system, primarily by hiring and training hundreds of new labor inspectors; and 3) Promoting labor rights and social dialogue by playing a leading role to improve labor-management relations throughout Colombia.
Expert Guidance from the International Labor Organization: The International Labor Organization (ILO) worked closely with Colombia to design the new Ministry of Labor and, with the help of funding from the U.S. Department of Labor, will continue to support Colombia with an unprecedented level of expert staff and resources in the country.
Workers Using Government Complaint Mechanisms: In June 2011, the Labor Ministry launched a new web-based mechanism to report improper labor practices, and in December there were 760 complaints filed by workers. The new system routes the complaints to the appropriate official who then responds directly to the workers. In January and February the Ministry responded to over 2,400 complaints, with the majority related to labor rights.
PROTECTING INTERNATIONALLY RECOGNIZED LABOR RIGHTS
New Laws to Protect Workers from Illegal Cooperatives: Colombia enacted new legal provisions in June 2011 to prohibit and sanction with significant fines the misuse of cooperatives and other employment relationships that undermine workers’ rights. The Santos Administration subsequently issued regulations that implement these new limits, and created tools for the Government to promote direct employment relationships between the user companies and affected workers. The new regulations also strengthen and clarify rules to ensure that only legitimate, autonomous, and self-directed cooperatives are allowed to operate.
New Specialized Inspectors for Cooperatives: The Labor Ministry assigned 50 new labor inspectors exclusively to cases involving cooperatives, and an additional 35 to address abuses of workers’ rights in the priority sectors of palm oil, sugar, mines, ports and flowers.
Landmark Enforcement Action on Illegal Cooperatives: In December 2011, the Labor Ministry imposed a $1 million fine against a palm oil company that contracts 3,000 workers through five cooperatives that have been declared “illegal.” The Labor Ministry also ordered the five fake cooperatives working for the palm oil company to be disbanded, but offered to reduce fines if the palm oil company hired and maintained the workers. In addition, in March 2012 the Labor Ministry launched a targeted enforcement plan in two more of the priority sectors identified under the Action Plan (cut flowers and ports).
Major Companies Eliminate Use of Cooperatives: Since the announcement of the Action Plan, two of Colombia’s largest supermarket chains and the country’s largest textile manufacturer are eliminating the use of fake cooperatives. These three companies have now directly hired 9,550 workers from such cooperatives and plan to convert 1,600 more to direct hires.
Disbanding Illegal Temp Agencies: Starting in June 2011 Colombia launched a comprehensive effort to inspect temporary service agencies and address illegal practices that deny workers their basic labor rights. As a result, the Labor Ministry fined hundreds of temp agencies, and dozens of these agencies lost their operating licenses.
Preventing Abuse of Collective Pacts: The Santos Administration secured legislation in June 2011 to establish criminal penalties, including imprisonment, for employers that undermine the right to organize and bargain collectively or threaten workers who exercise their labor rights. The law includes a provision making it a crime to offer a collective pact to non-union workers that has superior terms to those offered to union workers. The Labor Ministry established an enforcement regime to detect and prosecute violations under the new laws, and is conducting inspections of all companies in which both union-negotiated collective bargaining agreements and collective pacts are present.
PREVENTING VIOLENCE AGAINST THOSE EXERCISING LABOR RIGHTS
Protecting Union Leaders and Activists: The Colombian government expanded the scope of the existing government protection program for union leaders to also provide protection for labor activists (such as shop stewards and bargaining committee members), workers who are trying to organize or join a union, and former union activists still under threat. In order to provide this expanded protection for labor activists, the Santos Administration created a new “Protection Unit” within the Interior Ministry with a significantly increased (by over 30 percent) budget and additional personnel. The new Protection Unit operates under the direction of the Interior Minister, but has an independent budget and administrative discretion to ensure continuity and effectiveness of protection efforts.
Improving the Risk Assessment Process: The Interior Ministry reformed the risk assessment process in January 2012, and now conducts assessments jointly with the National Police. In addition, the risk assessment committee includes input from various state agencies and victim’s advocates to determine the appropriate protection measures for each applicant. The program protects 1,373 union members, and in 2011 had a budget of $83.5 million (compared to $7 million in 2001). In response to concerns from labor stakeholders, the Santos Administration moved quickly to eliminate a backlog of hundreds of risk assessments for applicants to the protection program.
Protecting Teachers: Teachers face particular risks in Colombia, especially those who work in remote areas. In recognition of this situation, President Santos strengthened the teacher protection program, in consultation with teachers’ union representatives, including by eliminating disincentives for those seeking relocation due to threats. In 2011, 282 teachers were temporarily reassigned under the protection program, and 38 received permanent relocations. In addition, the Colombian government signed an agreement in June 2011 covering 22 issue areas with the largest teacher’s union, the Colombian Federation of Educators (FECODE). The Office of the President of FECODE noted that this was the first time a Colombian government had allowed all teachers’ issues to be put on the table. The agreement covers issues such as protection (including relocation for threatened teachers) and the right to association.
PROSECUTING PERPETRATORS OF VIOLENCE AGAINST THOSE EXERCISING LABOR RIGHTS
Early Action on Union Cases: In 2011 Colombia’s Prosecutor General’s office mandated that at the beginning of every murder investigation, prosecutors determine whether the victim was a union member. The Prosecutor General also issued guidance to prosecutors to accelerate cases involving labor violence, with a special emphasis on priority cases identified by Colombian unions.
Increasing Resources for Prosecutions: The Santos Administration increased the 2012 budget of the Prosecutor General’s Office to expand personnel and measures designed to reduce impunity. As a result, the Prosecutor General’s sub-unit for labor rights has 33 new prosecutors dedicated exclusively to crimes against union members. The National Police has assigned an additional 100 full-time judicial police investigators to the Prosecutor General’s sub-unit for labor rights. In addition, judicial police investigators and prosecutors are receiving specialized training on cases of violence related to union activity. In 2011, 84 sentences were issued for crimes against union members, compared to only one in 2001.
Working with Labor Stakeholders: The Prosecutor General’s Office and the National Labor School (Colombia’s foremost labor rights NGO and think tank) have held five in-depth meetings over the past year to improve the quality and efficiency of prosecutions in union cases. The following initiatives arose out of these meetings: 1) Providing information to prosecutors and investigators on the history and causes of cases of violence against union members; 2) Comparing data on specific cases involving union members; 3) Discussing and improving investigation methodologies to identify and document crimes against union members; and 4) Comparing statistics on the number of registered unions and union members in Colombia.
Increasing Transparency and Support for Victim’s Families: The Prosecutor General has posted on its website all the convictions and sentences resulting from labor violence cases concluded since January 1, 2011, and has developed a methodology for posting aggregate information about all completed criminal cases involving labor violence. The Prosecutor General’s Office has also developed a plan and identified budgetary needs for victims’ assistance centers specializing in human rights cases, including those involving crimes against unionists.
MORE EVIDENCE OF COLOMBIA’S COMMITMENT TO LABOR AND HUMAN RIGHTS
Victims and Land Restitution Law: On June 10, 2011, President Santos signed the landmark Victims and Land Restitution Law in the presence of the UN Secretary General. The law offers reparations to four million victims and restitution of nearly five million acres of land to over 460,000 families displaced due to the internal armed conflict. The government has already restored or titled more than one million acres of individual and collective properties in less than a year. The law defines victims to include victims of state agents, outlines the rights of victims in judicial processes, establishes assistance mechanisms to victims outside of reparations, inverts the burden of proof in land restitution cases in favor of displaced victims, and creates expedited channels for restitution. This law, introduced personally by the President, was a top priority for the Administration and the majority congressional coalition.
Law Extending Maternity Leave: On June 30, 2011, President Santos signed Law 1468 of 2011, which allows expectant mothers to take two weeks of paid leave prior to the birth of a child. The measure, which had been recommended by the ILO, extends the total leave from 12 to 14 weeks in cases of one child and 16 weeks in cases of multiple births. In the case of a premature birth, the mother can add the number of premature weeks to her total maternity leave.
Addressing Discrimination: On September 19, 2011, the Colombian Congress passed Bill 165/10, called the Discrimination Law. The law carries a penalty of one to three years in prison or a fine of approximately $2,500 to $4,000. It also adds a chapter on discrimination to the Colombian Penal Code that will include not only racism against Afro-Colombians and indigenous persons, but also discrimination caused by ethnic origin, religion, nationality, political ideology, gender, or sexual orientation, and is designed to provide the Colombian government with additional tools to combat discrimination in access to employment and social benefits. President Santos signed the bill into law in October 2011.
Noguera Conviction: On September 18, 2011, the Colombian Supreme Court sentenced former intelligence director Jorge Noguera to 25 years in prison for crimes related to having placed the DAS (Administrative Department of Security) at the service of paramilitary interests. Among his crimes was providing a list of union leaders to the paramilitaries for targeted killing. The Santos Administration secured legislation and abolished the entire DAS spy agency.
Jailing of Executive over Labor Issue: An executive at Colombian café chain OMA was jailed in September 2011 for 15 days for ignoring a court order to rehire 13 workers he had fired for organizing a union. Although the jailing was due to contempt of court, one of the major union confederation leaders commented that it would not have happened prior to the recent reforms championed by the Santos Administration.
Decree on Public Sector Bargaining Rights: In May 2011, the Colombian government and all three major labor confederations agreed on a decree that will grant collective bargaining rights in the public sector. Labor unions noted that the decree represents a marked change in tone on labor from previous Administrations. The decree has been signed by the Minster of Labor and is awaiting signature by the Minister of Finance and President Santos.
ONGOING DIALOGUE AND COOPERATION ON LABOR RIGHTS
Follow-up Mechanism: The Action Plan establishes a mechanism to ensure implementation of the plan’s commitments through regular meetings between officials of the U.S. and Colombian governments. In 2011, both Secretary of Labor Hilda Solis and U.S. Trade Representative Ron Kirk met with Minister of Labor Rafael Pardo to discuss the Action Plan. In November 2011 and in March 2012, Deputy U.S. Trade Representative Miriam Sapiro met with Minister Pardo as well as labor rights groups and NGOs in Bogota to follow up on Action Plan commitments. In addition, there have been more than a dozen technical meetings by officials from the two governments, and regular meetings will continue through the end of 2013 and thereafter.
Labor Obligations in the Trade Agreement: The United States – Colombia trade agreement includes a permanent mechanism to address labor issues, through a Labor Chapter with fully enforceable obligations to uphold the fundamental labor rights of the ILO. The agreement also establishes a Labor Affairs Council, comprised of cabinet-level officials to oversee implementation and progress under the Labor Chapter.