This is a Labor Action Plan Monitoring report done by Witness for Peace delegates and International Team this past July. It includes the on-the-ground labor reality for Colombian workers now that the Free Trade Agreement between Colombia and the U.S. has been implemented. The report includes specific recommendations and case studies for U.S. officials, policymakers and civil society to track where labor law is not complied with and bring about effective change set out by U.S. and Colombian labor accords.
Continued Violations of the Colombian Action Plan Related to Labor Rights:
Witness For Peace July 2012 Delegation Report
August 1, 2012
The purpose of this report is to convey the findings and recommendations of the Witness for Peace delegation that conducted an independent investigation of labor rights in Colombia from July 20-30, 2012. Our ten-person delegation was comprised of two full-time Witness for Peace staff living in Colombia and eight delegates from the United States including trade unionists, educators, activists, and NGO workers. This delegation specifically aimed to assess the implementation of the Labor Action Plan now that the U.S. – Colombia Free Trade Agreement is in effect. Through meeting with affected groups and advocacy organizations, we found multiple and egregious violations of the plan in the areas of Cooperatives, Collective Pacts, and Violence and Impunity, as well as a lack of response to the troubling consequences of the FTA for women in Colombia. As the United States is now complicit in these labor rights violations, we ask that the U.S. Embassy do everything in its power to act on this information to remedy the continued violations of the Labor Action Plan.
The Colombian Action Plan Related to Labor Rights intended to prohibit the misuse of subcontracting by cooperatives and temporary service agencies. Witness for Peace July 2012 delegation has found that they have been replaced by new and just as prevalent forms of intermediary employment and third party contracting. The Labor Action Plan identifies the port sector as a priority. Buenaventura illustrates the egregious labor violations of this plan. Our visit to the port provided clear examples of noncompliance with the Labor Action Plan through a variety of methods:
New forms of subcontracting
A Simplified Stock Association (SAS) is a new form of subcontracting agency that has replaced cooperatives. The port of Buenaventura and Sociedad Portuaria is especially dramatic in this regard with over 700 intermediary companies such as Simplified Stock Associations.
· Compania Servicios Portuario Esapecializada (CSPE) is one of many SAS operated by the pro-managerial union Sintramaritimo. More and more of these “unions” are adopting subcontracting mechanisms as a means of skirting around the cooperatives. CSPE is an important example that limits workers’ rights by preventing direct contracts with corporate employers which would provide direct accountability and stability. Workers employed through CSPE have been denied their legitimate benefits and job security through their employment by a third party contractor.
· The cooperative Coowinpropa reinvented itself as a SAS named Artica. Then it transformed itself once more into another SAS called Ecpe. However, the owner remained the same in all three forms. This not only prevented direct contracts, but it also imposed temporary employment.
Conditions on Direct Contracts
The most common demand by port workers is a direct contract relationship with the corporations.
· Often direct contracts place conditions on workers; most commonly workers are forced to agree to not join or to withdraw from the Union Portuaria (otherwise known as a “yellow dog contract”). TECSA, in addition to employing workers through intermediaries, enforced the condition that workers not be represented by the Union Portuaria in its direct contracts with workers. Intermodal S.A.S. required that workers not be represented by the Union Portuaria and demanded that workers withdraw their complaints from the Labor Ministry. Prodeco offered workers direct contracts only if they withdrew from the union and kept their contracts secret.
Expansion of Precarious Work
According to the Labor Action Plan, temporary work arrangements are not to be used to undermine labor rights.
Workers with Intermodal S.A.S. report that even when they receive a direct contract, the duration rarely exceeds 4-6 months. These short term contracts enable a high turnover of workforce and maintain low wages, poor working conditions, meager benefits and the inability to accumulate seniority.
The Labor Action Plan requires direct contracts and steady work for “permanent core functions.” However, workers report that the short contracts and new intermediaries are eroding job security even in areas of core function of the port.
Proliferation of Competing Unions
The creation of competing unions undermines workers’ collective bargaining rights. Many of these unions have only a small number of members and receive preferential treatment from companies. In Buenaventura, for example, Sintramaritimo, is described by workers as a “sindicato patronal,” because it collaborates with the company to undermine negotiations. It also received resources from the mayor’s office for rent in the amount of 1,500,000 pesos.
As pointed out by the previous Witness for Peace delegation in February, there is an ongoing problem with inspections.
Even though the Colombian government complied with the hiring of additional inspectors, they are not trained adequately to identify these new forms of subcontracting. When fines are imposed they are inadequate in amount (a 56 million peso limit), they can be appealed interminably, and they do not deter corporations from repeat violations. For large multinationals the fines are not a deterrent and for smaller companies it justifies bankruptcy and leads to reincorporation without improvement of labor conditions for workers.
In fact, of the 91 fines imposed, no fines nor any criminal sanction for anti-union violence have been carried out. (See the list of imposed fines attached.)
Under Section III Part B, the “strategy of offering to waive fines wholly or in part when the employer agrees to create and maintain a direct employment relationship” allows the companies to get away with their violations.
In requests for clarification of Decree 2025, the Labor Ministry has exempted the very forms of labor outsourcing that are meant to be prevented by the Labor Action Plan.
We have serious additional concerns about the labor and human rights conditions at the port and in Buenaventura:
· Ongoing death threats against union leaders
· Blatant racism by employers of Afro-Colombian workers
· Lack of social investment by the port companies in the community
· The increase in sexual violence against women and child prostitution
· Advocate for broader language and clearer interpretation of labor law to include all forms of third party subcontracting and outsourcing
· Train more labor inspectors to ensure frequency of inspection, monitoring, and follow-up
· Promote compliance through the application of fines and criminal penalties since no fines nor any criminal sanction for anti union violence have been carried out.
· Secure the increase in direct employment relationships without conditions that undermine “the right to organize and bargain collectively”
· Protect threatened unionists and issue an immediate embassy denunciation of any act of violence against workers
II. Collective Pacts
Another key issue undermining freedom of association in Colombia is the continued use of collective pacts and the lack of enforcement to prevent such pacts.
As you are aware, Section V of the Labor Action Plan provides for reforming the Criminal Code of Colombia to criminalize collective pacts that are used to undermine the right to organize. In addition, the Labor Action Plan says that the Ministry of Social Protections, now the Labor Ministry, “will implement a robust enforcement regime . . . to detect and prosecute violations.” Unfortunately, these provisions of the Labor Action Plan on collective pacts are not being fulfilled.
In collective pacts, workers are offered short-term benefits and improved working conditions in exchange for renouncing their right to join an independent labor union, effectively removing their right to organize and allowing the company to dictate all conditions of employment. Without an independent labor union to represent workers’ interests, workers cannot effectively defend their rights and enjoy full protections of the labor code.
General Motors Colombia is one company that continues to use collective pacts to the detriment of labor rights. Since 2003, GM Colombia has signed a collective pact with workers every two years, with the last one signed in January of 2012. At the signing this year, GM workers were incentivized with money to sign the pact, which explicitly prohibits them from joining an independent union. Workers were told that their continued employment was dependent on signing the pact, so in fact they had no choice but to accept the imposed conditions. The individuals who ostensibly represented the workers were not elected and instead were appointed by GM management.
The lack of independent labor representation for GM workers has exacerbated conflicts between workers and management and left many workers subject to illegal firings. For example, workers have documented systemic patterns of illegal terminations due to workplace injuries, including debilitating conditions requiring major surgery that limit mobility and employment options for workers. Company practices included the sharing of medical records from the company clinic doctors with management, who then fired workers based on this confidential information.
Both General Motors Colombia and the Ministry of Labor were complicit in the illegal firing of injured workers. In the last year, worker complaints prompted the Labor Ministry and the Procuraduría to investigate these firings and concluded that GM had violated labor law. In a follow-up investigation, workers’ medical records disappeared from company files, and the Procuraduría was not present as required by law. Moreover, the labor inspector who signed off on the firings, as well as the GM lawyer, have been sanctioned by the Attorney General for their illegal actions.
These illegal firings led to the formation in May 2011 of the Association of Injured Workers and Ex-Workers of General Motors Colombia (ASOTRECOL). The founder of this organization, Jorge Parra, was fired two months later in retaliation for exercising his right to freedom of association. Without effective union representation, these workers have taken their grievances to the public by protesting in front of the U.S. Embassy. These workers are seeking reinstatement to jobs appropriate to their physical abilities; the right to form a labor union; and pensions for those workers too ill to resume employment based on their workplace injuries.
The continued existence of collective pacts and the systemic failure to prosecute labor violations indicates that the Labor Action Plan has not been implemented in full as required by U.S. Congress with the passage of the Colombian Free Trade Agreement. As concerned U.S. citizens who are closely monitoring the labor and human situation in Colombia, we request the U.S. Embassy to take the following actions:
§ Investigate the collective pact signed by General Motors with its workers that undermines their rights to organize
§ Press the Colombian government to prosecute those illegal actions