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Bogota. The CUT is thankful and appreciates the commitment and initiative of the Constitutional Court for its proposal of “constitutional dialogue with the nation”, because it constitutes a great opportunity of connecting reality and law. The Constitutional Court has succeeded in making contact with many sectors of the Colombian society, for this reason, unionised workers are thankful for this opportunity of presenting labour reality to the Constitutional Court.



The CUT agrees with the Constitutional Court in its purpose of contributing to the construction of a Social, Legal and Democratic State, a project that we consider desirable, necessary and possible to achieve, but an unresolved construction in our country.

We cannot miss the opportunity of express our recognition and gratitude to the Constitutional Court for the recent pronounced sentences that have allowed to unblock some problems in relation to union freedom, as the Union Registry, some issues as regards the right to collective negotiation and strike; subjects that the previous government refused to face and that only with the intervention of the CC, could they be resolved.



We must acknowledge the relevance of the issue of labour formality for which we are called by the Constitutional Court, a key issue in our Union Central’s agenda, not only because most Colombian workers are under a situation of labour informality, without labour protection (we have the highest rates of unemployment and informality in Latin America), but also because this is a circumstance directly related to poverty and inequality as well as the financial viability of the social security system as regards health, pensions and labour risk.



Now, to start this dialogue I want to introduce three ideas for discussion:



1. We acknowledge that the Constitutional Court jurisprudence has enabled labour rights to be exercised by an important number of workers.

We especially want to highlight, among others, the following groups of workers, which have advanced in the direction of labour formality as a result of the court’s jurisprudence:



Pregnant women, football players, men and women householders, domestic service workers, state workers hired through agreements of provision of services, workers of Associated Work Cooperatives, informal workers of the public space, ill temporary workers, pensioned workers, etc.



2. However, labour reality in Colombia is so precarious that the work of the constitutional Court results insufficient to protect labour rights. More efforts are required enforce article 25 of the constitution: “Work in dignified and fair conditions “ or according to ILO “Decent Work”-

We must admit that after almost 20 years of Constitution and constitutional Court, we still have a precarious constitutionalization of labour rights, due to at least four reasons:



§ The general inapplicability of the writ for the protection of labour rights either because there are another judicial means of defence or because they are considered contentious rights or related to benefits.

§ The Court has conferred broad faculties to legislators in terms of labour rights and as a result of this, a scarce control is carried out as regards this subject

§ A great legislative oversight: there is no Labour Statute in Colombia

§ A weak and deficient understanding of our labour rights in our legal environment. The weakness of the argumentation about labour rights as real fundamental rights is the origin of the problems as regards their protection and requirability. In other words, we believe that it is necessary that the notion of decent work proposed by the ILO should be incorporated in the constitutional jurisprudence.



We must acknowledge that there are several fields of decent work without constitutional protection. For example:

§ Of the near 20 million Colombian workers, more than 13 million work in conditions of informality, without labour protection. Not more than 6.500.000 workers have scarcely some kind of labour protection; consequently, it is important to develop constitutional protection for these unprotected labour relations, and provide a better application to the principle of reality; It would be very useful that the Court should apply ILO recommendation on labour relations.

§ In Colombia there is a proliferation of precarious forms of contracting workers. The two main examples are Associated Work Cooperatives and Agreements of Provision of Services, issues on which the Court has ruled on several occasions. However, the State and the companies continue their abuse by using these forms of employment; as a result, a strongest position is required from the Court as regard this subject.

§ In Colombia only 4 out of 100 workers are unionised, and only 1 out of 100 have had the possibility of exercising the right to collective bargaining. This is why it seems so urgent that the Court should move forward in the direction of labour freedom, preventing and severely penalizing the company’s and the State’s anti union practices and in particular, by broadening its understanding of the right to collective bargaining, because the court pointed out in sentence C-280 (2007) that collective bargaining is not a fundamental right. If in Colombia we want labour formality, the best way, the most sustainable is to guarantee and protect unionisation and collective bargaining.

§ In Colombia near 50% of the employees work more than 48 hours per week. The Court should pay great attention to abuses carried out through the flexibility of labour journey. In this respect the 2010 report of the ILO Experts Committee on application of Conventions and Recommendations on Convention 1 (working hours) is very illustrative.

§ The labour situation of women, young workers and Afro-Colombian population, is more critical than the rest of the workers. They have higher unemployment rates, informality, lower wages and less social protection. The Constitutional Court might pay more attention to these serious conditions, described with great precision in many reports issued by the ILO Experts Committee on application of Conventions and Recommendations about convention 111 (discrimination at work)

§ In Colombia we have more than 1.600.000 working children, and the Constitutional Court has not had the opportunity of pronouncing on this grave situation.

§ The accident rate, professional diseases and death at work have a growing tendency in our country. The jurisprudence of the Constitutional Court should be more demanding with the Labour Risk Administrators to fulfil their obligations; and with the State to demand more efforts in broadening the scope of the coverage, which now scarcely covers 1/3 of the workers.

§ In Colombia the process of labour inspection is so weak, that there are less than 400 work inspectors with the mission of controlling the fulfilment of labour laws. The Constitutional Court should be more demanding with the State in relation to the fulfilment of its fundamental duty of custody and control of labour issues, as well as it did as regards health policies and displaced people.

§ The country is making great progress as regards legal security for companies; however, a backward step has been taken in relation to legal security for workers. The Constitutional Court should improve its understanding on labour acquired rights and thus granting more legal security to workers and pensioned people.



3. We believe that the Court can continue creating this link between reality and rights, with the conviction that there could be a progress in issues like:

§ Giving more emphasis to constitutionalization of labour law, and thus granting constitutional protection for many situations demanded by labour reality.

§ A stricter constitutional control as regards labour legislation, to prevent the removal of labour protection and to promote its extension to a 2/3 of the unprotected workers

§ To demand the Congress of the Republic the compliance with Article 53 of the Constitution, the creation of the Labour Statute, and strongly require the government the reinforcement of their obligations of protection and control of labour issues.

§ To make and effort to lay de foundations of labour rights as real fundamental rights and in this way to overcome structural problems of requirability and protection, using, for this purpose, the valuable doctrine of ILO control bodies.



Author: Hernán Trujillo Tovar



Contact: leonor.sierra@uniglobalunion.org