Lucía Salazar Sosa, an attorney with the law firm Álvarez Liévano Laserna, explains what trade unions are, their types, how they are formed and their most important implications in labor law in Colombia. Attorney Salazar is a graduate of the Universidad Nacional, specialist in Social Security and Master in Human Management and Organizational Development from the Universidad Externado de Colombia.
He has worked at Legis, the Bogotá District Comptroller's Office, Fiduprevisora and has been part of the Álvarez Liévano Laserna team for more than five years. She works in consulting, litigation in Courts and Superior Courts of Judicial District and accompanies union negotiation processes.
What is an employment contract?
The legal definition of the employment contract in Colombia is set forth in Articles 22 and 23 of the Substantive Labor Code:
"An employment contract is that by which a natural person is obliged to render a personal service to another natural or juridical person under the continued dependence or subordination of the second and, for remuneration".
Carlos Barco, Partner and head of litigation and training at Álvarez Liévano Laserna, clarifies that. "it is a personal contract, made by a person of flesh and blood, but when it is subordinate", something of paramount importance given that "protecting the object of the contract is to protect the person who is providing that service".This is of capital importance given that "to protect the object of the contract is to protect the person who is rendering that service", he affirms.
What is the Right of Association?
The Right of Association has been understood by the Constitutional Court as a fundamental right, which comes from an action or an agreement between several people who have come together with a common objective or purpose. Globally, it has even been given the connotation of a human right, as it is understood to be inherent to the nature of man, to which one has access by the fact of being a worker without distinction of nationality, roles or gender.
This Right of Association has two very relevant aspects. One positive, which consists of the right of workers to join a union, and the other negative, which implies the possibility for this same group to not be forced by any actor, directly or indirectly, to join or be affiliated to any organization in general terms.
What are the activities of a trade union?
The activities carried out by labor unions in Colombia are regulated by Articles 373 and 374 of the Substantive Labor Code.
Among the most important activities are:
- The submission of petitions. These are the claims that workers, represented by trade union organizations, wish to present to their employers for the purpose of improving their working conditions.
- Labor and union counseling to ensure that workers are aware of their rights and guarantee good working conditions.
- Accompaniment in the defense of workers' rights. For example, in the case of disciplinary proceedings, unions can accompany their members to ensure that their rights are respected.
- The power to represent affiliated workers before administrative authorities, employers or third parties.
- The promotion and education of its members in relation to labor and association rights.
How are trade union organizations formed?
Prior to the 1991 Political Constitution, Colombia had implemented a model of an intervening State that required in the Substantive Labor Code, as a prerequisite for the existence of a union, that the Ministry of Labor recognize it as a legal entity.
This requirement was eliminated with the entry into force of Law 50 of 1990 and the new criterion that currently prevails is that the legal personality of the union organizations is acquired with the simple constitution of the union, although the power of the Ministry of Labor to formulate some objections with respect to the registration in the union registry is maintained.
By virtue of the foregoing, in order for a union to become a legal entity, it is sufficient for its members to meet and draw up a founding act defining, among other things, i) the name of the organization, ii) the objective, iii) the list of the persons who are gathered together with their respective identifications and, iv) the definition of the activities that each one of them will carry out.
It is important to keep in mind that with the founding act, three legal effects are generated:
- A new legal entity is created, called a union organization, with the name given to it by the union members.
- The union is obliged to register with the Ministry of Labor for publicity purposes.
- The founders' charter is born.
Additionally, it is necessary to point out that the union must not only communicate the creation of the organization to the labor inspector, but also to its employer in order to derive some of the referred effects.
Can anyone join a union?
Yes, in fact, the law so empowers it. Article 353 of the Substantive Labor Code states that without any type of prior authorization, union organizations may be formed, obviously respecting the rules that have been defined by their own members in the bylaws.
Is there a minimum number of members to form a union?
The union must have a minimum of 25 members. With this number of people gathered, the creation of a trade union organization is feasible.
Do trade union organizations have any type of funding?
They can obtain resources from different sources, for example, from the ordinary and extraordinary dues established in their bylaws, which are deducted from the members' payroll. Also in the collective bargaining collective bargainingAlso in collective bargaining processes, when agreements are signed, the parties may reach agreements in which the employers offer subsidies for the operation or support of the union organization. All these resources help to finance the union.
Notwithstanding the foregoing, it should be taken into account that Article 355 of the Substantive Labor Code imposes a prohibition on unions, since they cannot have as an object the exploitation of businesses or activities for profit. In this sense, financing for union organizations could not be derived from these activities.
How are unions classified?
Base or company unions:
They require affiliates to be part of the same company, regardless of their profession or trade.
It is worth noting that although this position is debatable, the Constitutional Constitutional Court in decision C-567 of 2000 opened the possibility for more than one base union to concur in the same company by declaring unconstitutional paragraphs 1 and 3 of Article 26 of Legislative Decree 2351 of 1965, paragraph c) of paragraph 4 of Article 46 of Law 50 of 1990 and paragraph g) of Article 45 of Law 50 of 1990.
Unions by industry or branch of economic activity:
They are made up of people who provide services in different companies, but in the same industry. In order to determine the industry or economic activity to which this classification refers, there is no reference in the labor regulations in force; therefore, for its definition we have used the International Standard Industrial Classification -which does establish a categorization of industries. This reference, it is insisted, does not derive from the labor standards, but it serves as a support to understand what the standard refers to when it refers to an industry union.
Trade unions:
They are made up of workers who have the same profession or trade; for example, pilots.
Trade unions of various trades:
Formed by workers from different professions, dissimilar or unconnected.
Is it possible to leave a union at any time?
Employees have the right to decide whether or not to remain members of a labor union. If they have definitively decided to no longer belong, they must communicate this to the union and these in turn to the Company, in order to attend to administrative matters, such as those related to ordinary or extraordinary dues deductions made through payroll or the eventual termination of union privileges. union privileges that protect them.
Likewise, and according to the bylaws of each union organization, there may be grounds for expulsion from the unions, so that if any worker incurs in any of them, strictly speaking, he/she should cease to be an active member.
What are the causes for dissolution and liquidation of trade union organizations?
These grounds are contained in Article 401 of the Article 401 of the Substantive Labor Code.. The first one is when any of the events that the union organization itself has defined in its bylaws for the purpose of its dissolution are fulfilled. The agreement reached by the members of the union organization in that sense may also be a cause for liquidation, requiring two thirds of the members; provided that such decision is made in the General Assembly.
It is also given by judicial sentence, that is to say, it is possible to go before the labor judge, who will order the dissolution of the union organization. Finally, the same effect will be produced if the portion of the affiliates corresponds to less than 25 persons.
What does union leave consist of?
It is a guarantee enjoyed by some workers, which protects them from:
- Being unilaterally dismissed without just cause
- To have their working conditions reduced
- That they are transferred to other establishments of the company or to a different municipality.
The article 406 of the Substantive Labor Codeestablishes the workers who are covered by this guarantee and the periods over which such protection will remain in force, as follows:
- i) The founders of the union, from the day of its constitution and up to 2 months after the registration in the union registry, provided that this term does not exceed 6 months; ii) The adherents that correspond to those workers who, prior to the registration in the union registry, join the union and it is valid for the same term as for the founders; iii) The 5 principal and 5 alternate members of the board of directors and sub-directors or 1 principal and 1 alternate member of the sectional committees for the term of office and 6 months more; and vi) Two members of the statutory grievance committee.
What is the difference between union privilege and circumstantial privilege?
While the union privilege is given in the circumstances mentioned above, the circumstantial privilege only arises within the framework of a collective conflict, from the filing of the list of demands and until it ends, either because a Collective Bargaining Agreement was signed, or because an Arbitration Award was rendered or the extraordinary appeal for annulment was resolved by the Supreme Court of Justice.
The guarantee of the circumstantial privilege consists solely of the fact that the contracts of workers affiliated to the union cannot be terminated unilaterally and without just cause during the collective conflict.
What are the Collective Bargaining Agreement and the Arbitration Award?
Both collective instruments put an end to the collective conflict. On the one hand, the Collective Bargaining Agreement is the agreement reached by the workers who presented the petition and their employers, which sets forth the rights and prerogatives that will govern the collective relations during its term. This agreement must be in writing and must be deposited with the Ministry of Labor.
On the other hand, the Arbitration Award arises when in the direct settlement stage, it was not possible to reach a total agreement on the union's petitions. In this case, the union organization requests before the Ministry of Labor the convening of an Arbitration Tribunal, formed by arbitrators chosen by the company, by the union organization, and another, by mutual agreement or by lot. They will issue a decision called Arbitral Award, which also corresponds to the collective instrument that will govern the collective labor relations during its term.
Are unions a growing trend in Colombia?
In general, the number of trade union organizations has increased in recent years, but this does not mean that the rate of unionization has also increased in the same proportion. This has to do with the decisions or pronouncements of the Supreme Court of Justice, which has endorsed the multi-affiliation of workers to different union organizations, a position that has allowed the creation of several unions, but not with the purpose of generating improvements in their working conditions, but rather to generate union privileges and in that sense, to propitiate labor stabilities that are artificial.
Therefore, although there are more unions, this does not necessarily mean that more workers have actually created new unions.
What are the practical recommendations that a company should take into account with respect to unions?
We have realized that the key to good relations between union organizations and companies lies in the communication systems that exist between the parties. It has also been shown that it is very useful to identify the most representative members of the union organization in terms of positive leadership, since through these people it is possible to achieve an adequate transmission of the information that the employer seeks to provide.
What is the future of trade union organizations in Colombia?
For several years now, the role of the national authorities has not been simply protectionist, but there has been a real promotion of the right of association and, with the new government of President Gustavo Petro, there is a great expectation of a significant increase and development of trade unions in Colombia, especially due to the appointments that we have seen, have been defined for the heads of the ministerial bodies, particularly in the Ministry of Labor.
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