Review of public communication CAN 2016-1

Background

This report responds to Public Communication CAN 2016-1 (Colombia) submitted to the Canadian National Administrative Office (NAO) by the Canadian Labour Congress and five Colombian labour organizations pursuant to Article 10 and Annex 2 of the Canada-Colombia Agreement on Labour Cooperation (CCOALC). The Canadian NAO accepted Public Communication CAN 2016-1 for review on July 15, 2016 after it was determined that it met all the requirements established in Canada's Guidelines for Public Communications. In accordance with the Guidelines, the Canadian NAO conducted a review and has prepared this public report within 180 days of the acceptance of the Public Communication.

The Public Communication alleges that the Government of Colombia has failed to comply with its obligations under the CCOALC by failing to provide adequate protection for internationally recognized labour principles and rights. More specifically, the Public Communication identifies failures in the areas of (a) freedom of association and the right to collective bargaining including protection of the right to organize and strike; (b) enforcement of labour laws; (c) derogation from labour laws in order to encourage trade and foreign investment; and (d) timely access to labour justice.

In support of the allegations, the Public Communication includes information on two cases: (1) Pacific Rubiales, an extractive company, for which reported events occurred between 2011 and 2013 at the Campo Rubiales oil fields and involved the trade union Unión Sindical Obrera (USO); and (2) Ingenio La Cabaña, a sugar producing and processing company, for which reported events occurred between 2012 and 2015 at the sugar plantation and mill La Cabaña and involved the trade union Sindicato Nacional de Trabajadores de la Industria Agropecuaria (SINTRAINAGRO). In both cases, the submitters allege that misuse of subcontracting, systematic anti-union practices and the climate of violence that still prevails in the country have had a negative impact on workers’ rights generally and particularly on the exercise of their rights to freedom of association and collective bargaining. The problems are attributed to both inadequate legal protection for these fundamental rights and a failure to effectively enforce the existing labour law.

During the review process, the Canadian NAO visited Colombia on two occasions to assess the extent to which the allegations raised by the submitters demonstrate non-compliance with CCOALC obligations. The review process involved gathering information from a wide range of sources, including through consultations with the Colombian NAO. In response to the allegations, the Colombian NAO provided the Canadian NAO an extensive report on November 1, 2016, which included explanations regarding Colombia’s labour law framework as well as the actions undertaken by labour authorities in both alleged cases. As part of its review process, Canada also consulted with the submitters, representatives from Pacific Rubiales and Ingenio La Cabaña, the incumbent unions at these two companies, representatives of the major Colombian trade unions and the business sector, officials from the Ministry of Labour, and other government and civil society representatives.

Findings and analysis

The two cases reviewed reflect distinct realities and occurred in different economic sectors. However, they both bring to the forefront certain common challenges in the area of labour relations.

The Colombian legal framework provides workers and employers the right to freedom of association and to enter into collective bargaining discussions. The legal framework allows for the registration and formation of a union in a given workplace, the existence of multiple unions in one workplace, and for workers to join one or more unions active in their workplace. Trade unions generally enjoy independence and the benefits of collective bargaining. Nevertheless, the evidence gathered throughout the review process suggests the existence of noteworthy challenges.

Recommendations

The Canadian NAO offers, in the spirit of cooperative discussions, the following recommendations to the Government of Colombia aimed at addressing the issues and concerns identified during the review process:

1. In order to protect workers’ fundamental rights to freedom of association and collective bargaining, remove legal vehicles used to undermine these rights by making the following changes:
   • Eliminate union contracts. These contracts have become a platform for abusive labour practices and bad faith bargaining. The use of these contracts has also had significant negative impact on the autonomy of trade unions and their ability to fulfill their primary purpose;
   • Eliminate collective pacts. These pacts undermine the ability of independent trade unions to organize and negotiate authentic collective agreements thereby unduly interfering with the balance of power in labour relations;
   • Eliminate the misuse of short-term contracts. Repeatedly renewed short-term contracts are being used to disguise permanent employment relationships and thereby denying workers legal protection. The resulting high degree of job insecurity significantly impedes the ability of trade unions to organize and operate;
   • Implement measures to reduce the widespread and systematic practices of illegal labour intermediation and subcontracting including:
     • repealing Decree 583 (which has, in practice, enabled the subcontracting of permanent core business functions) and replacing it with a legal instrument that unambiguously empowers labour inspectors to combat the misuse of intermediation and subcontracting;
     • ensuring that labour inspectors are empowered to identify and address situations where intermediation or subcontracting is being used to disguise a direct employment relationship regardless of the formalities associated with the relationship;
     • developing guidelines for labour inspectors that identify permanent core business functions in specific economic sectors;
     • directing enforcement resources at ensuring that civil law contracts (e.g. SAS, associated work cooperatives) are not used to deny workers social and labour protections provided in the law;
   • Consider the creation of a specialized quasi-judicial regulatory body to make decisions on union registration and dissolution and to hear complaints of unfair labour practices and discrimination by unions and employers. This body would be independent of the government and tripartite with appointees representing employers, unions and neutrals with specialized knowledge of law and labour standards.
2. Strengthen compliance with and enforcement of labour law through a labour inspectorate that focuses on preventive measures, provides effective advice, and establishes and efficiently collects penalties by:
   • ensuring that workers have timely access to justice in a manner that workers can claim labour rights, such as reinstatement or severance for dismissals, in the ordinary judicial process;
   • streamlining the administrative process for more effective imposition of fines, including considering the harmonization of existing sanctions in both the Substantive Labour Code and other labour law;
   • ensuring that Colombia’s public collector (CISA) effectively collects the fines and makes the achieved results known in the short and medium term, including an analysis of whether the fines imposed have a sufficient deterrent effect;
   • providing labour inspectors the appropriate training and resources to perform effectively their duties, including preventive and proactive labour inspections;
   • investigating multiple complaints filed against a particular employer under a single process;
   • increasing the supervision and monitoring of labour formalization agreements negotiated with employers that obtained a reduction or remission of a fine for illegal labour intermediation or subcontracting to ensure that these companies offer permanent contracts rather than fixed-term contracts to workers through the implementation of these agreements.
3. Strengthen efforts to fight impunity and violence in the country by bringing those responsible to justice by:
   • evaluating the effectiveness of the mandatory conciliation phase (a precondition for the investigation to start) as required by the criminal proceedings for Article 200 of the Criminal Code and ensuring that existing procedures do not curtail the timeliness and efficiency of the administration of justice;
   • reviewing active files for violations under Article 200 of the Criminal Code, in particular those that may not be pursued due to timelines and for which immediate measures would be required;
   • providing the National Protection Unit sufficient and permanent financial resources to operate effectively;
   • ensuring that inter-institutional coordination mechanisms (between the Ministry of Labour and the Office of the Attorney General) are in place for the exchange of information and sharing of relevant evidence;
   • critically and independently examining the role of the ESMAD, whose actions and interventions have been strongly criticised by Colombian and international stakeholders for excessive use of force;
   • effectively advancing the investigation of violations under Article 347 of the Criminal Code, which criminalizes threats against trade unionists, including by ensuring that guilty parties are brought to trial when warranted;
   • ensuring that reassignments of files are done in accordance with proper investigative practices to avoid unreasonable delays; and
4. Evaluate and report on efforts to promote freedom of association and free collective bargaining in the country.

In conclusion, and pursuant to Article 12 of the CCOALC which provides that a Party may request in writing consultations with the other Party at the ministerial level regarding any obligation under the Agreement, the Canadian NAO recommends that the Minister of Employment, Workforce Development and Labour seeks consultations with the Minister of Labour of Colombia related to the above-mentioned recommendations.

The agreement

The Canada-Colombia Agreement on Labour Cooperation (CCOALC), a parallel agreement to the Free Trade Agreement between the two countries, was signed on November 21, 2008, and came into effect on August 15, 2011.^{Footnote 1} The CCOALC provides for a Public Communication process through which members of the public can raise concerns to one CCOALC Party related to labour laws matters arising in the territory of the other CCOALC Party and that pertain to any matters under the CCOALC.^{Footnote 2} Each country has also established a Point of Contact or National Administrative Office (NAO) that can accept and review such public communications in accordance with domestic procedures.^{Footnote 3} The Canadian Guidelines for Public Communications describes the procedures and criteria to be followed by the Canadian NAO for the submission, acceptance and review of public communications.^{Footnote 4} The role of the Canadian NAO in reviewing a public communication is to gather information and make recommendations to the Minister of Employment, Workforce Development and Labour of Canada on whether to engage in Ministerial Consultations in accordance with Part III of the CCOALC regarding the issues pertaining to compliance with the obligations under the CCOALC that were not resolved during the review.

The Public Communication

On May 20, 2016, a Public Communication was received by the Canadian NAO, the first one under the CCOALC. It was submitted by the Canadian Labour Congress and five Colombian labour organizations: Central Unitaria de Trabajadores (CUT), Confederación de Trabajadores de Colombia (CTC), Corporación Colombiana para la Justicia y el Trabajo (COLJUSTICIA), Sindicato Nacional de Trabajadores de la Industria Agropecuaria (SINTRAINAGRO) and Unión Sindical Obrera (USO). The Canadian NAO determined that the Public Communication met all the eligibility and technical requirements set out in Canada's Guidelines for Public Communications. It was therefore accepted for review on July 15, 2016 and was assigned reference number CAN 2016-1.

The Public Communication alleges that the Government of Colombia has violated the obligations of the CCOALC and includes information on two cases in support of the allegations: (1) Pacific Rubiales, an extractive company, for which reported events occurred between 2011 and 2013 at the Campo Rubiales oil fields and involved the trade union USO; and (2) Ingenio La Cabaña, a sugar producing and processing company, for which reported events occurred between 2012 and 2015 at the sugar plantation and mill La Cabaña and involved the trade union SINTRAINAGRO.

According to the submitters, the Colombian Government failed to comply with the following provisions of the CCOALC:

• Article 1, which states that “[e]ach Party shall ensure that its statutes and regulations, and practices thereunder, embody and provide protection for […] a. freedom of association and the right to collective bargaining (including protection of the right to organize and the right to strike)” as articulated in the 1998 ILO Declaration.^{Footnote 5}
• Article 2, which states that “[e]ach Party shall ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its labour laws in a manner that weakens or reduces adherence to the internationally recognized labour principles and rights referred to in Article 1 as an encouragement for trade between the Parties, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.”^{Footnote 6}
• Article 3, which states that “[e]ach Party shall […] promote compliance with and effectively enforce its labour law through appropriate government action”^{Footnote 7}
• Article 4, which states that “[e]ach Party shall ensure that a person with a legally-recognized interest under its law has appropriate access to proceedings before a tribunal which can enforce the Party's labour law, give effect to such person's labour rights and remedy breaches of such law or rights.”^{Footnote 8}
• Article 5, which states that “[e]ach Party shall ensure that […] the proceedings referred to in Article 3.1(b), 3.1(e) and Article 4 […] do not entail unreasonable fees or delays, and the time limits do not impede exercise of the rights.”^{Footnote 9}

Article 26 of the CCOALC defines labour law as “laws, regulations and jurisprudence […] that implement and protect the labour principles and rights set out in Article 1”. Article 1 of the CCOALC includes the following principles and rights: (a) freedom of association and the right to collective bargaining (including protection of the right to organize and the right to strike); (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour (including protections for children and young persons); (d) the elimination of discrimination in respect of employment and occupation; (e) acceptable conditions of work with respect to minimum wages, hours of work and occupational health and safety; and (f) providing migrant workers with the same legal protections as the Party's nationals in respect of working conditions.

The review process

The Public Communication was reviewed by the Canadian NAO to assess the extent to which the allegations raised by the submitters demonstrate non-compliance with the CCOALC, if at all. The review process involved gathering information from a wide range of sources, including through consultations with the Colombian NAO under Article 11 of the CCOALC.^{Footnote 10}

The review process included the following:

• The Canadian NAO met with COLJUSTICIA representatives on August 15, 2016, on the margins of a presentation at Global Affairs Canada in Ottawa, to hear their views on the Public Communication and discuss next steps of the review process.
• A list of questions related to specific allegations in the complaint was sent to the Colombian NAO via e-mail on August 15, 2016, a response was received on August 28, 2016 and an updated response was received on September 30, 2016.
• From August 29 to September 2, 2016, Canadian NAO officials travelled to Colombia and met in Bogotá with Colombian government officials, including the Ministry of Labour, the Office of the Inspector General, and the National Protection Unit. They also met with representatives from CUT, CGT, CTC, the National Association of Enterprises, Pacific Rubiales, the state-owned oil company Ecopetrol, and the Department of Labour of the United States. Canadian officials also visited Pacific Rubiales oilfields in Puerto Gaitán (Meta Department) and the facilities of Ingenio La Cabaña in Puerto Tejada (Cauca Department), where they met with workers’ and companies representatives. While in Cauca, Canadian officials met with representatives from the Association of Sugarcane Growers in Cali.
• Canadian NAO officials visited Bogotá from September 26 to 30, 2016, to review key aspects of Colombian labour law with officials from the Ministry of Labour of Colombia. Canadian NAO officials also met with officials from the Attorney General’s Office.
• Following the Canadian NAO visit in late September, the Colombian NAO sent draft minutes of the joint meetings and asked for comments from the Canadian NAO on October 6, 2016, to which the Canadian NAO provided comments on October 13, 2016. The Colombian NAO requested additional comments on November 30, 2016, to which the Canadian NAO responded on December 1, 2016.
• In response to the allegations by the submitters, the Colombian NAO sent a report^{Footnote 11} on November 1, 2016, where they provided explanations regarding Colombia’s labour legislative framework as well as the actions undertaken by labour authorities in both alleged cases.

While the review process by the Canadian NAO remained independent, the Canadian NAO provided updates and exchanged views with the following stakeholders throughout the process: (a) the Colombian NAO; (b) the submitters; and (c) the United States Department of Labour, which received a nearly identical public communication under the Colombia-United States Trade Promotion Agreement.

Notably, the CCOALC creates obligations that the governments of Canada and Colombia must respect and, therefore, the focus of the review process was Colombia’s compliance with those obligations as opposed to the actions of specific employers and workers. In relation to the specific events described in the Public Communication, it was not always possible to reconcile what were, at times, contradictory versions of events. In addition, some allegations of non-compliance were of a general nature and did not stem directly from the events reported at the production facilities. All allegations were carefully considered when findings of fact were made.

This report

In the context of the review process discussed above, this report aims to examine and propose resolutions to the issues of a systemic nature that are at the root of the challenges raised by the Public Communication.

The report consists of four sections. The first section reviews aspects of Colombian labour law that are relevant to the issues raised in the Public Communication beginning with a brief overview of the current labour situation in the country. It also includes some observations from the Canadian NAO. The second section presents key elements of the allegations including Colombia’s response and certain observations from the Canadian NAO. The third section includes a summary of findings and analysis in which the most important issues identified in the review of the allegations are examined and discussed in light of the NAO’s observations about Colombia’s labour situation and legal framework. Finally, the fourth section includes recommendations to strengthen adherence to the CCOALC and its underlying principles.

A. Overview of the labour situation in Colombia

Colombia faces deep structural challenges in the area of labour, notwithstanding certain positive trends.^{Footnote 12} Labour informality is widespread, the rate of self-employment is high, and many employees have limited term contracts. In order to reduce their operating costs, a large number of employers have used over the years different forms of subcontracting to avoid complying with obligations under the labour law. The sanctions and penalties imposed by Colombian labour authorities in this area have not had sufficient deterrent effect. At the same time, anti-union activities continue to affect the full exercise of the right to freedom of association and collective bargaining. Child labour also remains a challenge in the informal and illicit sectors.^{Footnote 13}

Decades of internal armed conflict have also resulted in more than 6 million internally-displaced people and the second highest number of landmine casualties worldwide.^{Footnote 14} The climate of violence has affected the Colombian union movement and its leaders.^{Footnote 15} Several union leaders and members feel that they are perceived as belonging to guerillas groups and are persecuted for demanding their rights, which is an expression of the prevailing anti-union sentiment in the country.^{Footnote 16} Trade unions are often viewed not only as oppositionist, but often as subversive or as enemies of the institutional order.^{Footnote 17} This perception has manifested itself in the stigma surrounding trade unions that has spread into Colombian society, including businesses and political elites.^{Footnote 18} The anti-union culture has posed significant challenges to the advancement of trade unionism. Between 1986 and 2014, more than 3000 trade unions activists were murdered, 230 disappeared and many thousands more were threatened with death, kidnapping or were victim to other types of violence.^{Footnote 19} In 2015, there were 18 labour homicides.^{Footnote 20} While the number of murdered unionists has dropped in recent years^{Footnote 21} and despite the progress achieved thus far, violence against unionists and other anti-union activities are still prevalent in Colombia.

B. Law governing labour relations

The protection of the rights to freedom of association and collective bargaining, including the rights to organise and strike, are guaranteed in the Colombian Constitution, the Substantive Labour Code, the Procedural Code of Labour and Social Security, and the Code of Administrative Procedure. Colombia has also ratified a number of Conventions of the International Labour Organization aimed at protecting the exercise of freedom of association and the right to collective bargaining, including Convention No. 87 on Freedom of Association and Protection of the Right to Organize and Convention No. 98 on the Right to Organize and Collective Bargaining, which are incorporated into Colombian labour legislation.^{Footnote 22}

C. Labour law enforcement

Colombia enforces its labour laws through administrative, coercive collection, and judicial processes. Five legislative instruments are in place to apply and enforce the labour law: the Substantive Labour Code, the Procedural Code of Labour and Social Security, the Code of Administrative Procedure, and the Collection Process under the Tax Act and Regulatory Decree 1072 of 2015.

A. Pacific Rubiales and USO

The submitters allege that Pacific Rubiales and its intermediaries interfered with workers’ freedom to associate by:

• conducting mass dismissals of union members;
• establishing a blacklist system to prevent workers affiliated with the Union Sindical Obrera (USO) from returning to work;
• refusing to renew worker contracts unless the worker resigned from USO and joined the Unión De Trabajadores De La Industria Energética Nacional (National Union of Energy Workers, UTEN).^{Footnote 102}

The submitters indicate that USO filed a complaint with the Ministry of Labour on July 25, 2011 about various violations including labour intermediation and refusal to bargain by Pacific Rubiales.^{Footnote 103} The submitters add that on February 2, 2012, USO filed a complaint with the Ministry of Labour against Pacific Rubiales and its intermediaries regarding mass dismissals of USO members, pressures on workers to disaffiliate from USO to join UTEN, and prevention of union leaders from entering the worksite.

The Government indicates that the complaint filed in February 2012 was dismissed on the basis that: i) there was no direct employment relationship between Pacific Rubiales and USO workers; ii) there was no violation of the right to freedom of association by Pacific Rubiales; and iii) the termination of workers’ contracts took place due to the termination of the object of the commercial contract signed between Pacific Rubiales and its intermediaries.^{Footnote 104} The dismissals, according to the Government, are justified by the fact that the commercial relations between Pacific Rubiales and its intermediaries were terminated.^{Footnote 105}

During the first mission to Colombia, Canadian NAO officials met with Pacific Rubiales representatives who indicated that their permanent core business functions were the exploration and production of oil and that the company had a number of permanent workers hired directly. However, in the process of an oil field expansion, the company engaged in subcontracting in response to the temporary increase in workload. While subcontracting is a common practice in the oil sector,^{Footnote 106} particularly through short-term contracts during the development phase of a new oil field, comments from various stakeholders suggest that Pacific Rubiales became involved in the internal operations of its sub-contractors creating confusion among workers as to the identity of their employer.

Furthermore, the submitters allege that USO’s union leaders were prohibited from accessing the worksite and talking to workers in the exercise of their legitimate union activities.^{Footnote 107} These allegations were submitted to the Committee on Freedom of Association of the International Labour Organization which, in turn, made a number of recommendations to the Colombian Government.^{Footnote 108} The submitters allege that the Colombian Government has not implemented to date any of the Committee's recommendations.^{Footnote 109} The Government states that the recommendations of the Committee were conveyed to a number of enterprises, including Pacific Rubiales and its subcontractors, so that these enterprises can take the necessary measures.^{Footnote 110} While companies have the right to ensure the safety of their facilities, the Canadian NAO observes that Colombian labour law requires employers to implement internal regulations which include procedures for the exercise of union activities in the workplace.^{Footnote 111} While the Colombian Ministry of Labour is not required to oversee these internal regulations^{Footnote 112} the labour inspectorate is empowered to ensure that workplace regulations are not contrary to national labour law and serve to promote the realization of labour rights.^{Footnote 113}

Moreover, the submitters allege that Pacific Rubiales and its subcontractors refused several times to engage in collective bargaining with USO and that the labour authorities were notified and provided with evidence of Pacific Rubiales’ refusal to enter into discussions.^{Footnote 114} The Government indicates that they facilitated discussions between Pacific Rubiales and USO, including by organizing roundtables to encourage the dialogue between USO, Pacific Rubiales and its intermediaries, and the community in which the oil field was located, Puerto Gaitán.

The submitters allege that the Ministry of Labour convened a meeting on September 20, 2011, between Pacific Rubiales and USO, and that workers agreed to suspend further protests, and Pacific Rubiales agreed to engage in collective bargaining and refrain from retaliating against workers who participated in the work stoppages. The submitters add that follow-up negotiations were scheduled on October 6 and 25, 2011.^{Footnote 115} The Government states that between September 21 and October 6 the Ministry of Labour fulfilled its responsibilities as a promoter and facilitator in the search for conflict resolution in conjunction with the community and Pacific Rubiales, which culminated in the signing of an agreement on December 1, 2011, that put an end to the dispute between the community and Pacific Rubiales. The Government adds that, notwithstanding the signed agreement, follow-up activities were organized by the Ministry of Labour.^{Footnote 116}

The submitters also allege that the follow-up negotiations scheduled for October 6, 2011, did not take place since Pacific Rubiales refused to negotiate given that they had reached an agreement with the National Union of Energy Workers (Unión de Trabajadores de la Industria Energética Nacional, UTEN). The submitters also allege that the Labour Normalization Agreement, signed between Pacific Rubiales and UTEN on October 6, 2011, was a commercial contract for the delivery of services rather than a collective agreement^{Footnote 117} and that Pacific Rubiales signed two union contracts with UTEN.^{Footnote 118}

In the context of the first Canadian NAO mission to Colombia, Pacific Rubiales representatives indicated that they were in favour of trade union plurality, but that they did not receive from USO the list of Pacific Rubiales workers affiliated to the union. They did however receive a list from UTEN, which resulted in the signing of an agreement in October 2011.^{Footnote 119} On their part, USO leaders recognized that it was a mistake not having registered workers from Pacific Rubiales in the first place to engage into bargaining talks with the company in 2011.^{Footnote 120} Learning from this experience, USO has registered workers from Pacific Rubiales since 2014, which has allowed USO to engage in collective bargaining discussions with Pacific Rubiales. In a recent communication by the Colombian NAO, the Canadian NAO was informed that the dispute has been referred to an Arbitral Tribunal for a final determination since no agreement has been reached.^{Footnote 121}

During the discussions conducted by the Canadian NAO, UTEN representatives indicated that workers of Pacific Rubiales preferred to be affiliated with UTEN as they represent a modern and alternative unionism and that, in contrast to many other unions, they condemn violence.^{Footnote 122} They also indicated that they had signed two union contracts and a collective agreement with Pacific Rubiales. The Canadian NAO observes that this is a clear situation where a union, UTEN, entered into union contracts to fulfill the role of an employer vis-à-vis the workers (i.e. responsible for ensuring sound labour relations and work environment) and served also as an intermediary between these workers and Pacific Rubiales. The Government states that, even if the actions of Pacific Rubiales could be questioned, the agreement signed between Pacific Rubiales and UTEN was nevertheless of significant value for workers of Pacific Rubiales.^{Footnote 123}

Furthermore, the submitters allege that the Government repeatedly failed to conduct adequate labour inspections and has not issued timely decisions in complaints lodged by USO before labour authorities in 2012, 2013 and 2015. For instance, the submitters allege that:

• the complaint lodged under Article 200 of the Criminal Code in May 2013 was reassigned at least three times;^{Footnote 124}
• there are no convictions recorded across the country despite the 1,146 complaints filed;^{Footnote 125}
• the unit created to reduce impunity is insufficiently staffed, has a backlog, and rarely pursues charges;^{Footnote 126} and
• there was no meaningful investigation conducted following the death threats received by USO leaders and their families for testifying against Pacific Rubiales.^{Footnote 127}

The Government indicates that the Ministry of Labour established a plan to inspect Pacific Rubiales and its intermediaries with a view to collecting facts in relation to the violations alleged by USO. Labour inspectors conducted 146 visits as of July 29, 2011 to determine the relationship between Pacific Rubiales and its intermediaries, and as of August 10, 2011, 162 inspections were conducted to assess the compliance with labour standards by Pacific Rubiales.^{Footnote 128} However, the Canadian NAO observes that the impact of those visits and inspections in effectively addressing the alleged violations is not part of the Government response.^{Footnote 129} A recent study concluded that labour rights violations and illegal subcontracting are widespread practices in Pacific Rubiales.^{Footnote 130}

The Government states that the Office of the Attorney General has received, from 2011 to September 2016, 1769 criminal notices (or denunciations) for violations of freedom of association under Article 200.^{Footnote 131} They also indicate that between May 2012 and April 2016, there were 53 investigations in which USO members are identified as victims of criminal actions.^{Footnote 132} The Government adds that the Office of the Attorney General has given priority^{Footnote 133} to the complaint filed by USO in May 2013.^{Footnote 134} The Government also indicates that out of the 1769 files under Article 200, there were 1149 files closed, including 249 where the complaint was withdrawn by the affected person and 84 where conciliation occurred between the parties. The remaining files were not pursued, in some instances due to the expiry of timelines, as provided for in the Criminal Procedure Code.

In addition, there are currently 628 active files for violations under Article 200 of which only one file is currently under investigation.^{Footnote 135} The Canadian NAO notes that violations to freedom of association under Article 200 of the Criminal Code are delitos querellables, i.e. they require that the affected individual files a formal complaint to ensure that an investigation is initiated. This has consequences for the applicable procedure which involves: (i) a mandatory presentation of a complaint by the affected individual, (ii) the possibility for the affected individual to withdraw the claim, (iii) a conciliation process between the involved parties (a precondition for the investigation to start)^{Footnote 136}, and (iv) mandatory archiving within five years from the date the criminal notice is brought to the attention of the authorities if indictment has not been made.^{Footnote 137} The Canadian NAO observes that out of these 628 files, 69% (432) are in the pre-investigative phase, i.e. waiting to exhaust the conciliation process. Particular attention is also drawn to cases dating from 2011 to 2013 which not only have exceeded the two-year limitation period for the pre-investigative phase^{Footnote 138} but may not be pursued as of December 2016 as some of them will reach the five-year period without indictment.

The Canadian NAO notes that no case of trial and subsequent conviction under Article 200 was reported by the Government. The Canadian NAO observes that, while conciliation may be a mechanism to provide a dialogue between the parties, its mandatory nature may cause unreasonable delays and increase the risk that most criminal notices will be not be pursued due to timelines, which would ultimately deepen the sense of impunity and lack of trust in the judicial system by workers. The Canadian NAO notes that the high number of files at the pre-investigative phase may point to the need for reforms either in the Criminal Code or in the investigative practices and techniques applied.

The Government also indicates that the National Protection Unit (Unidad Nacional de Protección, UNP) has performed 2,745 risk assessments^{Footnote 139} for trade union leaders and members, provided special protection to 2,480 union leaders between 2012 and 2015, and currently provides special protection to 597 trade unionist including USO leaders and activists.^{Footnote 140} While the Canadian NAO acknowledges the Government's efforts to prevent and reduce violence perpetrated against trade unionists in Colombia, the Canadian NAO notes that the fluctuating budget of the UNP may compromise its effectiveness in achieving sustainable results.^{Footnote 141}

The submitters allege that the Government of Colombia failed in maintaining peace during industrial relations disputes. The submitters indicate that USO officials were barred from accessing workers in order to conduct a strike vote and that workers were prevented from engaging in work stoppages because of the violent intervention of Colombian security forces.^{Footnote 142} The use of excessive force by the anti-riot unit ESMAD has seriously injured workers.^{Footnote 143} The submitters add that USO requested that inquiries be made regarding the excessive use of force by police authorities but their requests have not led to investigations.

The Government indicates that the Colombian Constitution guarantees workers the right to strike under Article 56, with the exception of essential public services workers. The Government also indicates that the Labour Chamber of the Supreme Court declared in April 2013 that the work stoppages conducted by USO in March, April and May 2012 were illegal.^{Footnote 144} The Government adds that the events of 2011 were considered a work stoppage and a social protest rather than a strike as no collective bargaining process was ongoing at that time between USO and Pacific Rubiales. The Government also indicates that the use of force by police authorities is legitimate when all peaceful means (i.e. dialogue, persuasion, warnings) have failed to resolve the conflict and when there may be a risk of damage to property.

While the right to strike is protected under Colombian law, the Canadian NAO observes that the systemic use of short-term contracts puts workers in precarious employment relationships and makes it difficult for them to effectively exercise their right to strike. The Canadian NAO notes that this precarious labour situation may give an unjustified reason to the government to deny workers the ability to take legitimate labour actions. The Canadian NAO further observes that it is unclear from the information provided in the Government's response whether any action has been taken in regard to the reports of excessive use of force by police, in particular actions by the ESMAD.

B. Ingenio La Cabaña and SINTRAINAGRO

The submitters allege serious systematic anti-union practices at Ingenio La Cabaña, namely, threats, intimidation, and threat of the non-renewal of workers’ contracts.^{Footnote 145} The submitters specifically point to the dismissal of workers by La Cabaña’s subcontractor, CAÑACORT D&B SAS, on the basis of their membership in SINTRAINAGRO.^{Footnote 146} CAÑACORT was the intermediary or subcontractor providing cane cutters to Ingenio La Cabaña. The submitters also allege that La Cabaña’s human resources director used threats of violence to discourage workers from joining SINTRAINAGRO.^{Footnote 147}

The Government states that, following the investigations conducted by the labour inspectorate of the Ministry of Labour, it was determined that no violations of the right of freedom of association occurred.^{Footnote 148} The investigation by the Ministry of Labour for anti-union discrimination was initiated on January 22, 2013 and closed on November 12, 2013 by decision No 157, subject to relevant appeals. In support of this decision,^{Footnote 149} the labour inspectorate considered that SINTRAINAGRO: i) was formed by virtue of the right to freedom of association protected under Colombian regulations and international treaties; ii) was in violation of its own by-laws as irregularities undermining the legitimacy of workers’ affiliation to SINTRAINAGRO emerged during the investigation; and iii) did not follow the legal mechanism to collect union dues. The labour inspectorate added that the testimonials gathered indicate that workers joined SINTRAINAGRO under the unsupported promise that by doing so they would preserve their jobs.^{Footnote 150} With respect to the interference from the human resources director in the activities of SINTRAINAGRO, the labour inspectorate refused to consider the audio recording presented as evidence because it was recorded without permission and was, therefore, in violation of constitutionally protected privacy rights.^{Footnote 151} With respect to the allegations that workers were dismissed due to their affiliation with SINTRAINAGRO, the labour inspectorate stated that no evidence of termination was tendered; rather the workers’ temporary employment contracts reached their natural conclusion.^{Footnote 152} The labour inspectorate emphasized that SINTRAINAGRO did not demonstrate that the workers affected by the alleged anti-union practices were in fact members of the union in accordance with the requirements established by SINTRAINAGRO’s own statutes. The labour inspectorate concluded subsequently that there was no violation of the exercise of freedom of association by Ingenio La Cabaña and its subcontractor CAÑACORT.

The submitters also allege that Ingenio La Cabaña refused to bargain collectively in good faith. The Canadian NAO notes that an investigation by the Ministry of Labour was initiated on January 21, 2013, and was closed by decision No 136 on September 17 of 2013 and that this decision remained unchanged notwithstanding the appeals. The labour inspectorate explained that there were inconsistencies in the process for workers to join SINTRAINAGRO and that the union’s authority to defend workers’ interests may be in doubt.^{Footnote 153} The labour inspectorate also indicated that the SINTRAINAGRO workers had no right to submit their list of demands to Ingenio La Cabaña since there was no employment relationship between them. In addition, although SINTRAINAGRO also presented a list of demands to CAÑACORT, CAÑACORT indicated that it was not in a position to bargain with the workers. Specifically, its contract with Ingenio La Cabaña had been terminated and so the specific work contracts of the SINTRAINAGRO workers also automatically came to an end.

The submitters allege that workers’ rights to freedom of association and collective bargaining are undermined by the common practice of illegal labour intermediation and subcontracting, particularly in the sugar industry, as illustrated by the case involving La Cabaña and SINTRAINAGRO.^{Footnote 154} Submitters claim that cane cutters hired through intermediaries for the performance of permanent core business functions, such as cane cutting, is illegal and impacts workers fundamental rights.^{Footnote 155} In a document provided to the labour inspector in Quilichao, Ingenio La Cabaña indicated that 209 cane cutters are hired directly by the company to work in their own sugar mill, and that 1200 cane cutters are subcontracted through intermediaries (e.g. CAÑACORT, AGROPECUARIA GARCÍA Y MARTINEZ SAS, CORTEAGRO SAS) ^{Footnote 156} to work in sugar cane fields that are not owned by the Ingenio La Cabaña. ^{Footnote 157} While segments of the production chain can be subcontracted through intermediaries, particularly in cases where workers are subcontracted for cane cutting in fields that do not belong to La Cabaña, these intermediaries are ultimately responsible to ensure that, as employers, they respect the labour rights of their workers and provide them with any social protection under the law.^{Footnote 158} The Canadian NAO notes, however, that, in practice, Ingenio La Cabaña monitors and controls the activities of its subcontractors and their workers even in fields that are not owned by Ingenio La Cabaña. Such actions are incompatible with the terms of the subcontracts. The Canadian NAO also notes that Ingenio La Cabaña’s high degree of control over the activities of its subcontractors can lead subcontracted workers to believe, with reason, that Ingenio La Cabaña is their actual employer.^{Footnote 159}

The submitters allege widespread misuse of short-term contracts.^{Footnote 160} As noted earlier, the insecurity resulting from the pervasive use of these contracts impacts the ability of workers to exercise their associative rights and advocate for appropriate working conditions. In addition, the fact that these contracts are frequently used to employ workers through labour intermediaries or subcontractors further diminishes the ability of workers to exercise their rights.

The submitters further allege misuse of contracting of workers through the use of Simplified Stock Companies (SAS), which has increased steadily since their introduction in Colombian legislation in 2008. SAS are commercial entities where workers are considered as partners (therefore not covered under Colombian labour law) and then contracted out to user companies who, in many instances, use the SAS to disguise the employment relationship.^{Footnote 161} SINTRAINAGRO workers have complained about the use of SAS arguing that it is an unfair and discriminatory labour practice that undermines their individual and collective rights.^{Footnote 162} The submitters further explain that subcontractors created in the form of SAS frequently cease their operations only to re-emerge under a new business name thus negatively affecting the ability of workers to exercise their labour rights.^{Footnote 163}

During its first mission to Colombia, Canadian NAO officials met with representatives of SINTRAINCABAÑA, SINTRAZUCAR and SINTRACAÑAZUCOL^{Footnote 164} (the latter is a member of the CUT, the same confederation to which SINTRAINAGRO is also a member). These three unions represent permanent workers of Ingenio La Cabaña and have a collective agreement with the company. The unions’ representatives indicated that relations with the company’s management team were excellent and that they had not encountered major obstacles in the exercise of their collective rights. They also mentioned that they were absolutely opposed to SINTRAINAGRO’s presence at Ingenio La Cabaña. The difficult and hostile environment toward SINTRAINAGRO turned into confrontations and violence between workers. The Canadian NAO notes that unionization per se was not an issue at Ingenio La Cabaña given the presence of multiple unions. The presence of these unions implies a rather sound environment conducive to the protection of workers’ labour rights. The Canadian NAO observes, however, that the misuse of subcontracting, unclear contractual arrangements, misuse of short-term contracts, lack of clarity in the responsibility regarding labour and employment obligations, and apparent confusion over what constitutes permanent core business functions, among others, leave workers unprotected against abusive practices and exposed to precarious conditions of work.

Due to the widespread and systemic misuse of subcontracting, the submitters proposed that a labour formalization agreement be reached in accordance with Law 1610 of 2013.^{Footnote 165} The Government indicates that the Ministry of Labour provided support to SINTRAINAGRO workers to follow-up on their proposal for job formalization. The Canadian NAO notes however that there is no available information as to the kind of support actually provided by the Ministry of Labour to SINTRAINAGRO.^{Footnote 166} The submitters also indicate that, despite several complaints for illegal subcontracting filed with the Ministry of Labour, only one inspection took place at Ingenio La Cabaña on June 18, 2013. The Government indicates that the complaints for illegal intermediation are being examined by a special investigation unit housed within the labour inspectorate of the Colombian Ministry of Labour.^{Footnote 167} In a recent communication by the Colombian NAO, the Canadian NAO has been informed that the Ministry of Labour has initiated the sanctioning process and filed charges against Ingenio La Cabaña for alleged misuse of subcontracting.^{Footnote 168}

The Canadian NAO observes that administrative and judicial proceedings to investigate the allegations made against Ingenio La Cabaña by SINTRAINAGRO were conducted. However, the Canadian NAO is concerned about the obstacles encountered by workers affiliated with SINTRAINAGRO, despite the existing legal and constitutional protections for the right of freedom of association and collective bargaining. The Canadian NAO observes that it is unclear whether the labour inspectorate conducted an appropriate investigation into the allegations of anti-union practices.^{Footnote 169} The Canadian NAO notes that labour inspectors are empowered to proactively seek evidence and probe the evidence received a part of the investigative process.^{Footnote 170}

In order to reinstate dismissed workers and impose sanctions for anti-union discrimination practices, the submitters allege that they sought judicial remedy using the Action of Tutelage. The judge dismissed the case asserting that the Action of Tutelage is not the appropriate mechanism for the protection of labour rights, particularly when workers have other judicial mechanisms at their disposal.^{Footnote 171}

The submitters further allege that there was an arbitrary separation of a single complaint into two files resulting in confusing and burdensome proceedings.^{Footnote 172} The Government indicates that the complaints submitted to the Ministry of Labour were presented in two different documents and, therefore, two different investigations were initiated.^{Footnote 173} The Canadian NAO notes that any complaint made to the Ministry of Labour may be considered a derecho de petición (right to request) regardless of its content and it is, therefore, the responsibility of the inspector to examine the facts and undertake the appropriate process.^{Footnote 174} The Canadian NAO also notes that Colombian law indicates that documents and proceedings that are related may be investigated under one file.^{Footnote 175} While the principles of efficiency, economy, and due process do guide the work of the inspector in advancing investigations for the benefit of all parties,^{Footnote 176} the Canadian NAO observes that regulations would benefit from being reviewed to ensure that future cases are investigated in a streamlined manner. In addition, the sanction regimes, as described in part 1 of this report, could benefit from harmonization with a view to facilitating the imposition of fines when applicable.^{Footnote 177}

The submitters also allege that investigations carried out led to no sanctions, that no meaningful inspections were conducted, and that the complaints were not resolved within the established timeframes. The Government emphasizes that the allegations by the submitters are not founded and insists on having taken the necessary actions in response to the complaints.^{Footnote 178} The Canadian NAO notes that two investigations were initiated to determine if there was enough merit for a formal process to take place and that labour inspectors had 30 days to investigate claims and decide on the matter.^{Footnote 179} The complaints were dismissed on the grounds that there were no violations of workers’ rights, based on documentary and testimonial evidences. The Canadian NAO observes that lengthy processes^{Footnote 180} may provide workers with little incentive for pursuing claims particularly if no fines or sanctions are ultimately imposed. The Canadian NAO also observes that some of the SINTRAINAGRO workers were unaware of the type of contract regulating their employment relations and that they had no copy of their contracts.^{Footnote 181} The Canadian NAO cannot determine, from the Government’s response to the allegations, whether preventive measures were undertaken by the labour inspectorate in Quilichao to reduce this informational gap, including measures to raise awareness of labour rights among workers and employers.

Finally, the submitters allege that trade unionists have been subjected to violence, threats and intimidation, including the murder of SINTRAINAGRO union activist Mr. Juan Carlos Pérez Muñoz.^{Footnote 182} The submitters allege an escalating pattern of threats and intimidation by representatives from La Cabaña and its intermediaries.^{Footnote 183} In a communication dated July 15, 2015,^{Footnote 184} the Canadian NAO observes that the murder of Mr. Pérez Muñoz is still under investigation. The Canadian NAO notes that the investigation was assigned to different prosecutors and units, but it is unaware of the criteria and objectives for the reassignment. The Canadian NAO also observes that a criminal investigation is conducted if threats and intimidation against trade unionists meet specific restrictive criteria as established under Article 347 of the Criminal Code.^{Footnote 185} The Canadian NAO observes that serious threats against trade unionists may not meet some of the criteria established under Article 347. In addition, the Canadian NAO notes that there are currently 190 active files under Article 347 but, despite efforts from the Colombian authorities to prosecute perpetrators of crimes, there has been no conviction to date under Article 347^{Footnote 186} thereby contributing to cycles of violence and impunity.

Generally, the Canadian NAO acknowledges that SINTRAINAGRO workers had access to administrative and judicial mechanisms to seek redress for the violation of their rights^{Footnote 187} but expresses concerns about whether those mechanisms were effective and expeditious.

Subcontracting

In both cases, the misuse of subcontracting created situations where it was difficult for workers to effectively exercise their rights to freedom of association and collective bargaining because employment relationships were ambiguous. It became difficult to identify who should be considered as the employer and, ultimately, who should be the party responsible for the protection of rights and the respect of obligations, including liabilities in case of breach of those obligations. While workers in both Pacific Rubiales and Ingenio La Cabaña were hired through subcontractors, the Canadian NAO notes that the direction, monitoring and control of the working activities remained under the authority of the main employer. The relationship between the main employer and the subcontractors was not therefore at arm’s length. Pacific Rubiales, for instance, dictated working conditions for its subcontractors and appeared to have favoured those subcontractors who did not have USO members.

The effective control of the work activities of subcontracted workers indicate that Pacific Rubiales and Ingenio La Cabaña intended to disguise their de facto employment relationship with workers and thus avoid their responsibilities under the law. The Canadian NAO understands that subcontracting part of the production process is a common practice and may occur for legitimate economic reasons. However, when subcontracting becomes a vehicle to avoid labour law obligations, it becomes a problem. The significant interference of the main employers in the labour management activities of their subcontractors is a strong indication that the subcontracting relationships were, in fact, used for that purpose.

In particular, the subcontractors in both cases seem to have shared in the management of workers with the business owners and hired workers in short-term contracts to provide the necessary flexibility for the dismissal of workers. In the case involving Ingenio La Cabaña, for instance, submitters indicated that the use of the SAS as a subcontractor allowed the main employer to illegally contract workers to perform permanent core business functions under short-term contracts. According to SINTRAINAGRO, the SAS subcontracting for La Cabaña was created in the first instance as an Associated Work Cooperative; however, in order to comply with the changes in legislation that prohibited the use of cooperatives for the subcontracting of permanent core business functions, the cooperative transformed into an SAS with a view to continuing to provide its work and services to La Cabaña. In summary, if no employment relationship is recognized between the workers and the actual employer, it is impossible for trade unions to negotiate with the employer who ultimately directs the terms and conditions of work and, consequently, workers are negatively affected in the exercise of their collective bargaining rights.

Workers of the subcontractors felt that they were limited in their exercise of association and collective bargaining rights. They feared retaliation for their union activities or for joining a union that was not favoured by the main employer. Workers affiliated with USO feared being blacklisted, were apprehensive about losing their jobs if their contract was not renewed or extended, and felt undue pressure to join UTEN rather than USO. Workers affiliated with SINTRAINAGRO said that they were intimidated, threatened, and harassed by the company and the subcontractors, frustrating their attempts to exercise their rights. The Canadian NAO points out that the misuse of subcontractors resulted in a stifling climate in which subcontracted workers may have been reluctant to unionize as they felt unprotected from unfair dismissals or discriminatory practices. Although the letter of Colombian labour legislation recognizes the rights to freedom of association and collective bargaining, the reluctance of workers in precarious working conditions to unionize has in practice negatively impacted the genuine exercise of collective rights.

As mentioned in this report, the widespread abuse of worker cooperatives led the Colombian Government to issue regulations aimed at addressing the misuse of third-party contracting arrangements. Among others, these regulations defined “permanent core business functions” and prohibited contracting out through any other form of subcontracting. But the absence of regulatory requirements as to what specifically constitutes “other form of subcontracting”, increased the use of other contractual arrangements through civil-law contracts (e.g. SAS, associated work cooperatives, union contracts) to contract out permanent core business functions and activities, and thus disguise the direct employment relationship.

In that context, Decree 583 was adopted in 2016 with a view to putting an end to the misuse of subcontracting by listing a number of indicative elements to support labour inspectors in the imposition of sanctions. The original intent behind Decree 583 was laudable in that it sought to bring clarity to various aspects of Colombian laws related to the misuse of sub-contracting, thus facilitating the work of inspectors.

Nevertheless, after numerous discussions with various stakeholders involved in the drafting of Decree 583, the Canadian NAO has come to the conclusion that the accommodation of commercial interests resulted in the watering down of the original text during the drafting process and led to a situation where, by the admission of the Colombian labour ministry following a survey of its various labour directorates, confusion among inspectors is greater than ever as to what constitutes the misuse of subcontracting.^{Footnote 188} Decree 583 contributed to this confusion by weakening important measures designed to protect workers against improper subcontracting under Article 63 of Law 1429. First, it opened the door to subcontracting of permanent core business functions, which had previously been strictly prohibited. Second, it limited the ability to sanction illegal subcontracting in certain situations. Not surprisingly, Decree 583 is currently being challenged by the CUT (Central Unitaria de Trabajadores de Colombia) before the Council of State (Consejo de Estado). ^{Footnote 189}

This also means that, in its current form, the Decree may derogate from Colombian labour law and may violate Article 2 (Non-Derogation) of the CCOALC. Article 2 of the CCOALC commits the Parties not to derogate from their labour laws in a manner that weakens or reduces adherence to certain internationally recognized labour principles as an encouragement for trade between the Parties, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.

Overall, and based on a legal and factual analysis, the Canadian NAO believes that the Colombian Government needs to fill the regulatory gaps in its regulations and policies regarding the misuse subcontracting, including by making efforts to ensure that these regulations are effectively enforced. The misuse of subcontracting has essentially served to disguise the actual employment relationships which, ultimately, undermine workers’ individual and collective rights.

Union contracts

Union contracts are agreements between unions and employers in which a union provides the employer with the labour required to perform a specific task. While technically the union and its members are partners in the union contract, in practice, the union is the prime financial beneficiary and acts as an intermediary between its member-workers and its customer, the business owner. Workers must remain members of the union to benefit from the union contract and receive their salary directly from the union. The union contract is to be distinguished from a closed shop union arrangement where the union is the source from which the employer obtains its labour. In the latter situation, the employee is directly employed by the business owner while in the former the employee is in practice an employee of the union assigned to perform services for the business owner. Furthermore, under a closed shop union situation workers can at any time decide to change their representative union without an impact of their employment, whereas under a union contract employees effectively lose their freedom of association to decide collectively on their representative union since a change in union means the end of the union contract and loss of employment for all its members.

Like other forms of subcontracting, the use of union contracts has undermined workers’ collective rights by preventing workers from asserting their rights under the law vis-à-vis their de facto employer. In fact, when workers cooperatives were prohibited for purposes of labour intermediation, some cooperatives were reborn as trade unions with the purpose of continuing their operations using union contracts.

Union contracts also present additional risks to freedom of association and the independence of the participating unions. Nothing in the law prevents unions from having both a union contract and a separate collective agreement with the same employer and therefore engaging in collective negotiations to represent the interest of one group of workers while at the same time knowing that the employer could refuse to extend or renew an existing union contract on which the union depends financially. The terms of the union contract between UTEN and Pacific Rubiales provide an illustration of such a situation. Union contracts, therefore, distort the essential function of a union of protecting and defending the interests and rights of trade union members.

During its second mission to Colombia, at the request of the Colombian Government and in order for Canadian NAO officials to learn first-hand about the alleged benefits of the union contract for Colombian workers, the Canadian NAO met with a trade union representative of a trade union that holds union contracts. While the union representative acknowledged that union contracts are not collective agreements, he stated that union contracts have helped curtail subcontracting, provided workers with decent working conditions, allowed the realization of workers' rights and protected the exercise of trade unionism. However, following a close analysis of that union contract, Canadian NAO officials concluded that even such a ‘model’ union contract clearly impaired the main function and independence of that particular trade union, a conclusion not refuted by Colombian officials.^{Footnote 190}

The Canadian NAO also notes that, in a situation where a union holds both a union contract and a collective bargaining agreement with the same employer, the union has a vested interest in being as “employer-friendly” as possible in order to secure/renew union contracts with the employer. The employer, on the other hand, can choose which union to extend the union contract to and is therefore given the power to prefer certain unions over others in a manner not available through regular collective bargaining. Conversely, workers may be required to join or maintain membership in a particular union in order to have continued access to work.

As such and notwithstanding possible benefits, the union contract still compromises the ability of the union to advocate on behalf of its members. Union contracts, or any other civil-law contract between a union and an employer, are inconsistent with the essential nature and function of trade unions, understood as collective organizations aimed at protecting and defending the interests and rights of their members. While the Colombian Government issued regulations to prevent the misuse of union contracts as mentioned earlier in this report, the Canadian NAO is of the view that the right to collective bargaining can only be realized through direct and genuine process of collective negotiation between the employer and independent workers representatives. Such collective agreements provide the basis for sound and effective labour relations, where the employer also benefits in the form of engaged employees and increased productivity.

Collective Pacts

The use of collective pacts has also challenged fundamental rights, particularly the negotiating power of unionized workers in a company. As indicated earlier in the report, collective pacts are agreements between employers and non-unionized workers. The issue of collective pacts was raised during the review process and strongly impacts the right to collective bargaining which was raised by submitters and is central to this report.

Colombian labour law allows employers to negotiate collective pacts with non-unionized workers if trade unions represent less than one-third of the company’s workforce.  While employers are not allowed to offer better conditions than those contemplated in collective agreements with the trade unions in the company, the reality is that collective pacts have been embraced by employers as a way to discourage union activities or simply to prevent the formation of a trade union. The Canadian NAO notes that there is also a consensus among domestic and international observers^{Footnote 191} that the misuse of collective pacts has had a negative impact on the right of workers to bargain collectively. A 2016 report of the OECD indicates that some employers have used the promise of collective pacts to encourage workers to renounce their union membership. By doing so, employers have ensured that the membership in workplace unions remains below the one-third threshold and therefore preserving their ability to enter into a collective pact. In addition, notwithstanding the introduction of criminal penalties for the misuse of collective pacts in 2011, the number of collective pacts has not declined since that time. The Canadian NAO concludes, therefore, that union contracts and collective pacts have damaging effects on authentic collective bargaining and the role and independence of trade unions.

Labour Inspectorate

The work of the labour inspectorate is also criticized by the submitters in both cases. As mentioned earlier, it seems that a number of inspections and on-site visits were conducted by labour authorities to inquire into the alleged violations denounced by USO and SINTRAINAGRO and to assess the compliance with labour standards of both Pacific Rubiales and Ingenio La Cabaña. Documentary and testimonial evidences were also collected when relevant. As reported in the Public Communication, USO and SINTRAINAGO expressed their serious concerns about the inadequate labour inspections and the lack of sanctions in cases of non-compliance. Based on the analysis of the information provided by the Colombian Government, the Canadian NAO finds it difficult to determine whether the inspections conducted were effective or had a real impact in addressing the alleged violations or improving the labour situation in both cases.

However, what it is clear from the analysis and discussions is that, despite the efforts to improve the functioning of the labour inspectorate in recent years, the processes and tools are still burdensome and not completely effective. There are still challenges regarding the non-respect of the established timelines for the enforcement processes. The process for the collection of fines has yet to demonstrate its effectiveness following the recent agreement between SENA and CISA. Despite changes in the labour inspectorate system to improve the enforcement of Colombian labour law, including the increase of imposed fines, the measures in place may not produce the desired results if the deterrent effect of increased penalties is not accompanied by an effective collection processes. In addition, in order to properly fulfil their functions, labour inspectors require adequate training and resources including clear and consistent direction on the application of the law. This is particularly important in cases with a high level of complexity

Violence against trade unionists

Last but not least is the prevailing climate of violence, hostility, intimidation, and threats against trade union leaders and labour activists in Colombia.^{Footnote 192} The role played by government institutions to tackle impunity by investigating and prosecuting those responsible for violence against union members is essential. The strengthening in recent years of the National Protection Unit has been critical in the fight against violence affecting trade unionists. But these efforts and the progress achieved could be compromised if the institution is not provided with sufficient and sustained financial resources to effectively address the urgent needs of those workers that put their own safety at risk to defend legitimate rights.

The work of the Attorney General’s Office is also key for protecting workers against violence and prosecuting their attackers. The Government of Colombia reported 152 cases of labour homicides from 2011 to September 2016. Eighteen of these cases reached conviction by way of trial.^{Footnote 193} However, in light of the analysis of materials during the review process, the Canadian NAO notes with concern that no case of trial and subsequent conviction under Article 200 of the Criminal Code has been reported by the Colombian Government. Undue delays in the administration of justice may lead to the closing of files without criminal prosecution ultimately increasing the climate of impunity and lack of trust in the judicial system by workers. The high number of files in the pre-investigative phase point to the need for substantial reforms either in the Criminal Code or in the investigative practices.

Furthermore, the Canadian NAO is concerned that the calls for investigation of the excessive use of the force by police authorities have not been answered. As noted earlier, there are serious concerns at the national and international levels regarding brutal police aggressions by the ESMAD, which has in some instances seriously injured workers.

In conclusion, the Canadian NAO believes that clear and coherent labour policy instruments and legislation and their effective enforcement are critical to prevent abuse and discriminatory practices, and eliminate legal or practical barriers to the exercise of association and collective bargaining rights by workers and employers. The Canadian NAO shares the views that sound industrial relations is critical to improve the working conditions of workers and their productivity, for the benefit of both employers and employees.