Modest improvements in collective bargaining in Colombia that had been made up to the end of the 2010s have been reversed by the COVID‑19 pandemic. Prior to the pandemic, the number of collective agreements signed in the private sector increased steadily, from 380 agreements in 2017 to 572 in 2019 (Figure 4.1). However, the pandemic complicated the negotiation process and there has been a significant drop in agreements in 2020 (only 194 collective agreements were signed that year) and 2021 (273 agreements).
OECD Reviews of Labour Market and Social Policies: Colombia 2022
OECD Reviews of Labour Market and Social Policies
4. Collective bargaining
Progress in collective bargaining
Figure 4.1. The COVID‑19 pandemic reversed progress made in collective bargaining
Number of collective agreements and collective pacts in Colombia, 2016‑21
Source: Data provided by the Ministry of Labour.
In contrast, a major collective bargaining process with all trade union confederations has been completed in the public sector. On August 2021, the government signed a new agreement that will benefit around 1.2 million workers in the public sector, for a period of two years.
The Ministry of Labour has also been developing an electronic trade union registration system (Sistema de Información de Archivo Sindical, SIAS) with the support of the Government of Canada and in collaboration with the ILO. The system will register statutes, collective pacts and agreements, union service contracts and other actions of the trade union organisations and will provide reports and statistics on the subject, including on the number of workers covered, to monitor their developments. The system was launched in November 2021, but is still being fine‑tuned.
In contrast, there have not been any regulatory reforms in the past few years to improve the collective bargaining framework, and there are no reforms foreseen. As discussed in OECD (2016), significant obstacles to the free association of workers in trade unions and to union recognition by employers persist. In addition, legislative restrictions, such as, the full prohibition of strikes organised by higher-level trade union organisations or in companies providing essential services, continue to weaken trade unions and their bargaining possibilities.
The use of collective pacts
Unlike most OECD countries, but similar to Chile and Mexico, the Colombian legal framework allows employers to negotiate and reach collective pacts with non-unionised workers as long as trade unions represent less than one‑third of the company’s workforce. According to the Article 200 of the Criminal Code, employers are not allowed to offer better conditions in the collective pacts than those already agreed upon in the collective agreements with the trade unions in their company. This prohibition aims to avoid the use of collective pacts to discourage the affiliation of workers to the trade unions. However, the option of signing collective pacts brings several risks for the exercise of collective bargaining, including the imposition of pacts drawn up directly by the company or their trusted staff, and a reduction in unionised workers when the collective pact is promoted to prevent the independent organisation of workers in a union.
The draft decree to prohibit the conclusion of collective pacts in companies with a trade union that had been discussed during Colombia’s accession process [DELSA/ELSA/ACS(2017)2] was never published. Instead, the Ministry of Labour strengthened inspection of collective pacts and set up a Special Investigative Unit in 2017 to investigate complaints related to the misuse of collective pacts. The Unit received 12 complaints in 2017, only 1 in 2019 and none over the other years. The Special Investigation Unit examined 11 claims between January 2020 and 15 June 2021 (ILO, 2022[21]). In 2020, six fines were imposed for the misuse of collective pacts, for a total value of EUR 168 000, and in 2021 another four fines for a total value of EUR 41 000. However, the pandemic has complicated inspections and visits to firms have been suspended.
Despite improved inspections prior to the pandemic, the number of collective pacts steadily rose from 141 to 203 pacts between 2017 and 2019 (Figure 5.1). It fell to 90 pacts in 2020 due to the crisis, but started to pick up again in 2021 (114 collective pacts). Trade union federations confirm that misuse of collective pacts has become rare, but the fact that they are still allowed continues to weaken the work of trade unions in companies and prevents the emergence of new unions. They also claim that: (1) companies prefer to conclude first a collective pact with non-unionised workers and then to use it as a ceiling on benefits for the collective bargaining with the trade union; (2) the Ministry of Labour only verifies whether the content of a collective pact is more favourable than the collective agreement, and not the impact of a collective pact on trade union formation; and (3) the reduction of the number of the collective pacts deposited per year in 2020 is a direct consequence of the COVID‑19 pandemic, and not of the government actions to control it (ILO, 2022[21]).
Lack of regulatory reforms
The Ministry of Labour has been working on a draft Decree (amending Decree 089 of 2014) to allow multiple trade unions in the same company establish a joint negotiating committee and submit a unified statement of petitions. The aim of this initiative is to address union fragmentation, which negatively affects the collective negotiation process in Colombian firms, as sometimes five or more trade unions sit at the negotiation table within the same company, each with their own requests. It is not clear, though, whether it would become mandatory for existing unions in the same company to establish a joint negotiation committee and submit a unified statement of conditions.
The initiative was well received by the trade union organisations, but they requested a multilevel collective bargaining framework in return, including collective bargaining at the company, sectoral, regional and national level, to encourage companies to establish a joint negotiating committee as well, for unified bargaining with a representative union (CUT, CTC and CGT, 2021[5]). Negotiations on the draft Decree have since stalled and it is unclear whether an agreement can be reached.
There are no improvements in the legal framework for the strikes in Colombia either. Despite recommendations of different international actors to give the right to strike to higher-level trade union organisations, the Colombian Government is not responsive to this proposal. In its 2021 post-accession report, the Ministry of Labour recalled that the prohibition of the strike for the Federations and Confederation was declared constitutional by judgment C‑797 of 2000 of the National Constitutional Court (Mintrabajo, 2021[22]). In the same way, on the proposal to review the full prohibition of strike in essential services, the government provided information regarding the judgment 1 680 of 2020 issued by the Labour Chamber of the Supreme Court of Justice, which supported their position to limit strikes of essential public services defined by the legislator.
Regarding the proposal to ensure that all workers, irrespective of the legal status under which they work, can join trade unions in practice, the government states that there is no limitation for workers to constitute or join trade unions of any kind, except for members of the National Army and police forces. However, the trade union organisations pointed out that some workers, like subcontracted workers and apprentices, are unable join trade unions organisations in the company where they execute their work (CUT, CTC and CGT, 2021[5]).
Finally, the Colombian Government is not considering a gradual adjustment of the very high minimum wage to bring it back to its original role of wage floor instead of wage norm. On the contrary, the minimum wage has been raised by 10% in January 2022, while inflation was only 5.6% in 2021. At 90% of the median wage of full-time formal employees, the ratio is the highest among OECD countries. Moreover, evidence clearly shows that the minimum wage has a negative effect on employment, especially for workers earning close to the minimum wage, and induces informality (OECD, 2022[2]).
Significant efforts are required to build a constructive framework for social dialogue in Colombia, including: (1) the promotion of a two‑tier system of sectoral and firm-level bargaining, by elaborating the regulations on sectoral bargaining in the Labour Code; (2) the elimination of the option to negotiate collective pacts; (3) the automatic extension of collective agreements to all employees of a company, and not only to the members of the signatory trade unions (the erga omnes principle); (4) the requirement for multiple trade unions in the same company to form a bargaining team to ensure a single collective agreement; and (5) the right to strike to higher-level trade union organisations. With better social dialogue and reinforced collective bargaining, Colombia could consider a gradual adjustment of the very high minimum wage to bring it back to its original role of wage floor instead of wage norm.