Bogotá – Colombia, 15 September 2009
Mrs. GLORIA BLUE
Executive Secretary, Trade Policy Staff Committee
Office of the United States Trade Representative
SUBJETC: Request for Comments Concerning Free Trade Agreement With the Republic of Colombia
1. Are there gaps in Colombia’s labor law regime, including its enforcement mechanisms, with respect to providing for the fundamental labor rights of its citizens? If there are gaps, please identify them and provide specific suggestions for improvement.
Yes. At the beginning of the 1990s, the World Bank promoted a policy of making “labor flexible” in order to attract investment to developing countries by decreasing labor rights. In Colombia this policy was put into practice by Law 50 of 1990, introduced by then Senator Álvaro Uribe, which permitted the significant reduction of costs by companies, allowing them, amongst other things: to stop the back-payment of unemployment benefits; to privatize unemployment funds which they were allowed to manage themselves; to hire short-term contract workers for less than a year; to summarily fire workers; and to introduce the so-called ‘integral salary’.
Years later, as President of Colombia, Uribe approved Law 789 of 2002, which intensified his attacks against labor rights by the lengthening the work day until 10 pm, reducing the compensation for work done on national holidays and reducing the remuneration for those fired without just cause.
In the desperate search for competitivity, many companies and the government have forgotten that labor stability and a living wage for the workers can prevent urban violence, delinquency, the rise of narco-trafficking and social unrest.
The United States has strict legal measures that direct the actions of the government in their trade and commercial relationships. Under the Law of Commerce and Development of 2000 and the Trade Policy Authority of 2002, or TPA, the US government is obligated to present reports to Congress about labor conditions within the countries that it intends to sign trade agreements with, as a prerequisite for the signing of the agreements. Although the Republicans have categorically opposed the inclusion of labor standards, the Democrats insist on it.
Colombia does not have any norms that oblige the government to comply with conditions and minimum guarantees in its trade negotiations. They are guided simply by the constitutional principles of preserving the national interest, assuring sovereignty, self-determination and maintaining reciprocal and equal relations. This concept has been interpreted inconsistently depending on the administration.
According to the International Labor Rights Fund (ILRF), the FTA between the United States and Central America, the agreement that most closely resembles the Colombian agreement, will not prevent abuses of labor rights, nor will it prevent the weakening of existing labor laws in the signatory countries. The agreement will only lead to a greater deterioration of workers rights.
Although the text of the FTA expresses “that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in their respective labor laws” and that it will “strive” for the recognition and protection of international labor rights in this legislation, the FTA will not guarantee that the Colombian government supports labor rights nor can it guarantee that it won’t in fact weaken labor laws. In the last 19 years, Colombian labor legislation has been weakening in comparison to international labor norms set out by the International Labour Organization (ILO). Besides this, the FTA chapter on labor states that labor standards should not be used for protectionist ends, though the concern of this section is commercial and not labor per se, and it only seeks to prevent what has been called social dumping.
In the same sense, there is no mechanism that demands that the United States itself complies with any of the obligations included in this section. According to the actual text, “Nothing in this Chapter shall be construed to empower a Party’s authorities to undertake labor law enforcement activities in the territory of another Party.”
This chapter does not provide for the creation of a mechanism through which civil society could directly report violations of labor rights. The only way to resolve these reports of labor violations would be through “cooperative labor consultations” arranged by the signatory country. The sad reality is that the Colombian government is more interested in assuring that exports to the United States continue, than in promoting labor rights. It has been clearly shown in these trade agreements that there is no sanction against countries that violate labor rights.
The continual deterioration of labor conditions for Colombian workers would be reinforced by the intense competition that Colombian businesses would face against the businesses from other developing countries, who would have to fight amongst themselves, by way of further lowering salaries, to obtain access to the US market with lower prices. The ILRF has stated that these agreements would force developing countries to compete against each other to attract the limited American investment available, offering lower salaries and ignoring labor and environmental laws.
Although the Democratic majority in the Congress of the United States has asked for substantial changes in labor regulations of the FTA as a condition for its approval, the truth is that many relevant workers’ rights are excluded, the topic of migrant workers is completely left out, there are no mechanisms that would permit workers to claim their rights, and above all else, the structure of the agreement obliges competition over who can provide the cheapest labor, therefore requiring the exploitation of cheap labor. The worsening of the legislation and of the economic conditions of workers have coincided with the persecution of organized labor and the killing of labor leaders.
To ignore the importance of protecting labor rights in developing countries inevitably leads to an increase in migration. In the worst scenario, the lack of work opportunities or the deterioration in working conditions will pressure the population to look for income alternatives which the world has agreed to fight. Without a doubt, the increase of rebels and the rise in guerrilla and paramilitary groups in service of narco-trafficking is associated with a lack of job opportunities.
2. Is the Colombian government taking adequate steps to protect Colombia’s workers from acts of intimidation or violence that impede the exercise of their fundamental labor rights? If there are gaps, please identify them and provide specific suggestions for improvement.
No. In the report about Democracy, Human and Labor Rights, the US Department of State examined violations of the principle rights recognized by the International Labour Organization (ILO):
• Regarding the right to affiliation, they accepted the concern of the ILO that there is an “intolerable situation of impunity…that contributed to the climate of violence affecting all sectors of the society and the destruction of the trade union movement.” Labor leaders allege that the government has tried to marginalize them by arbitrarily arresting their members for supposed suspicion of supporting terrorist activities.
• Regarding the rights to organize and collectively bargain, the US Department of State reports that high levels of unemployment, a large informal sector and the violence against union leaders make union organizing difficult. The individual negotiations between workers and employers are not subject to collective bargaining, and this type of individual negotiation is used by employers to deter any organizing of its workers. In practice, when the unions presents a collective bargaining proposal, the companies offer their employees better conditions and salaries in turn for renouncing the union.
• Regarding the prohibition of child labor and the minimum age of workers, the Colombian Institute of Familial Wellbeing reports that there are at least 2.5 million children working in Colombia and that only 1 out of every 5 children is working legally.
The unions of Colombia have reported to the ILO the various actions taken by the government of President Uribe against the freedom of labor unions. Uribe persists on promoting a legal regimen totally against workers’ rights:
• The right to collective bargaining and to strike are denied to government employees.
• The policy of destroying the union movement has not changed.
• The acts of violence against unions continue with impunity.
• The national government promotes conflict resolution through mediation, not through collective bargaining, as the ILO prescribes.
• The violence against union members and leaders has been shown to come from governmental bodies. The Supreme Court has ordered a trial against the ex Director of the Colombian Administrative Department of Security or DAS, equivalent of the FBI, for five crimes including the murder of three individuals: the profesor Alfredo D’Andreis, the journalist Zully Esther Codina and the politician Fernando Pisciotti.
The humanitarian situations in Colombia worsened between 2007 and 2008; there has been an increase in massacres by 5%, murders of mayors and former mayors by 200%, assassinations of members of indigenous communities by 18%, of teachers not affiliated with trade unions by 67%, of teachers affiliated with trade unions by 15% and of trade unionists from other sectors by 117%. The Uribe´s government has also engaged in repression against indigenous communities: 1,240 indigenous have been killed in the six years since President Uribe has been in office.
“Official figures from the Ministry for Social Protection recorded 23 murders of trade unionists during the first semester of 2008, most of which occurred in Antioquia and Cauca. A national union federation, the Central Unitaria de Trabajadores (CUT), however, reported a total of 41 persons murdered from 24 different labour organizations, during the same period.”
Extra-judicial executions have increased by a disturbing amount. According to the latest report by the United Nations Office of the High Commissioner of Human Rights, the Attorney General’s Office has initiated investigations on 112 cases of alleged extrajudicial executions which occurred in 2008. In addition, about 473 additional cases, most of which occurred in 2006 and 2007, were referred to the Attorney General’s national Unit of Human Rights and International Humanitarian Law in 2008. This Unit is currently investigating 716 cases related to over 1,100 victims. These figures confirm that extrajudicial executions are not isolated events, but an extensive practice committed by a large number of military units throughout the country.
During the last five years, an increase of 67.71% has been registered in extrajudicial executions directly attributed to State security forces, between Januar/2007 and december/2008, 535 people were extrajudicially executed. According the director of Human Rights Wath, during Uribe’s government extrajudicial executions have taken place, a figure higher than the assassinations committed by dictator Pinochet of Chile.
3. Has the government of Colombia made sufficient progress in its efforts to prosecute the perpetrators of violence and intimidation against unionists exercising their fundamental labor rights? If there are gaps, please identify them and provide specific suggestions for improvement.
No. The Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, also said that “Colombia recorded a significant number of attacks in 2008 against human rights defenders and trade union members. These involved murders, as well as damage to property, break-ins, theft of information and threats. The worrying practice by some senior Government officials of publicly stigmatizing human rights defenders and trade union members, as biased and sympathetic to guerrilla groups, continued”.
“In the current context of polarization and confrontation between Government officials and members of the non-governmental organization community, threats against and stigmatization of human rights defenders, opposition leaders and social activists have become more intense. As mentioned above, some senior Government officials have frequently and publicly expressed negative comments regarding their work. During the civic mobilization against crimes committed by members of the AUC in March 2008, a breakdown in the dialogue between civil society and the Government was evident. As a result, the concerted elaboration of a National Human Rights Action Plan remains stalled.”
The current Government has maintained a policy of persecuting, stigmatizing, eliminating and impeding the trade unionist movement. In the face of strikes by workers of the judicial branch, the government declared “The State of Interior Commotion”, that allowed decrees to be issued that enabled employers to fire employees using their right to strike.
The Government employed the same response to the strike organized by the cane cutters. They have been on strike for over 53 days, to request that the national Government and the factory owners allows them to be contracted directly by and recognized by the respective factories where they work, rather than through the Work Association Cooperative, as is currently the case. The Government has labeled these workers as terrorists and ordered the capture of several leaders.
Sincerely,
ENRIQUE DAZA GAMBA
Speaker of RECALCA (Colombian Action Network in Response to Free Trade)
* RECALCA brings together 53 of the most important social organizations and unions to coordinate strategies of education, disclosure and mobilization around the FTA´s which the national government is promoting.