WOLA welcomes the following statements in defense of labor rights in Colombia by Representative Jim McGovern and Representative Sander Levin.
“I am disappointed in the President's decision to bring the FTA into force so quickly. At a time when threats and murders of human rights and land rights leaders are escalating, and threats and violence against labor activists continue unabated, this premature decision sends the wrong signal at the wrong time. Colombia's new ministries and enforcement mechanisms, while welcome, have yet to make a difference in the workplace, and threats against unionists and workers attempting to organize continue unabated. As a member of the Congressional Monitoring Group, I will continue to keep the Administration's and the Colombian government's feet to the fire until impunity comes to an end and Colombia's workers can safely and freely exercise their rights.”
WASHINGTON– Ways and Means Committee Ranking Member Sander Levin (D-MI) issued the following statement after four days of meetings in Colombia last week on the Action Plan on Labor Rights:
The Action Plan on Labor Rights signed a year ago incorporated important commitments to address serious issues regarding worker rights, violence and impunity.
Yesterday, President Obama indicated that ‘more work needs to be done’ on the labor situation in Colombia.
I believe that needs far more emphasis and is a much more realistic view than reflected in portions of the Fact Sheet on the Action Plan issued yesterday by USTR in the context of the May 15 implementation of the FTA.
I describe below my assessment of the facts on my four extensive trips to Colombia including last week. I urge that it is important to develop an ongoing roadmap based on actual progress to date and the concrete progress needed to change the reality on the ground for workers who have been without their rights in a culture antagonistic to those rights. So I urge all interested parties –including NGOs, the various worker organizations, human rights groups, the media and others, working with the two Administrations to the extent possible and interested legislators—to develop such a roadmap.
In all of my discussions with President Santos, Labor Minister Pardo and others in this Colombian Administration there has never been a question of their good intentions. Part of the purpose of the Action Plan was to support the new Colombian Administration as it developed the tools to address long standing problems and overcome resistance to the goals in the Action Plan. Necessary for such implementation is recognition, not a blurring, of the realities on the ground, as described below based on my first hand observations and discussions.
The fact is that much work remains in each of the following key areas.
Cooperatives. Colombian employers force workers to join sham “cooperatives” to hide true employment relationships. Workers hired through cooperatives, and other forms of commercial contacts that do not have rights under the Colombian labor code, including the right to form a union and collectively bargain. In 2009, cooperatives covered nearly 1.4 million workers, compared to 820,000 workers under a union and only 253,000 (1%) covered by a collective bargaining agreement.
A centerpiece of the Action Plan was to eliminate the misuse of cooperatives or any other kind of commercial contractual relationship. The Action Plan specifically targeted the palm oil, sugar, mine, port and flower sectors as priorities for addressing abuse of cooperatives and other forms of commercial contracting.
The situation on the ground has not changed in these priority sectors – cooperatives remain the dominant form of employment in these areas. Indeed, in the one priority sector where there has been some enforcement action – the palm sector – the cooperatives persist, including in the company that was sanctioned (but which has not yet paid the fine). Moreover, in cases where some employers have stopped using cooperatives, they have turned to other forms of contracting to hide direct employment, contrary to a 2010 law and the new regulations, with no action yet by the Government of Colombia.
Collective Pacts. Another device used by Colombian employers to undermine unions is direct negotiations with non-unionized workers even where a union is present (known as “collective pacts”). Under the Action Plan, Colombia committed to address the problem of “collective pacts” by criminalizing situations where employers offer better terms to non-unionized workers, and by implementing a robust enforcement regime to detect and prosecute violations. Yet, to date, there has not been a prosecution or, apparently, even a criminal investigation, for violations of the collective pact provisions of the new law providing for these penalties (Article 200). Moreover, the Colombian Attorney General’s Office, which has primary enforcement authority in this area, has not developed guidance or trained investigators and prosecutors on enforcement of Article 200. The Labor Ministry, likewise, has not trained its inspectors on Article 200, and workers in companies where collective pacts persist indicate no enforcement inspections have taken place to date.
Enforcement. Colombia has hired 100 new labor inspectors, as it committed to do under the Action Plan. Nevertheless, the inspections required under the Action Plan for priority sectors have yet to be effectively implemented.
Palm sector inspections occurred only in November, after a significant, highly publicized conflict, and were limited to a few companies in only one region of the country. The U.S. Department of Labor had serious, systemic concerns about the adequacy of those inspections, and began intensive work with the Colombians in December 2011 to address those concerns. It became apparent in my recent meetings that it was only in the last few weeks that an “implementation guide” for labor inspectors on cooperatives was developed. Moreover, I received first hand information during my meetings that most regional inspectors – who under Colombia law have initial enforcement responsibility – have not been trained on the new guide, so enforcement of the cooperatives law and regulation remains undeveloped.
Guidance and training still needs to be developed for enforcement of Article 200 on collective pacts, and the other provisions of Article 200 which criminalize actions to undermine worker rights. Guidance and training is also needed on use of temporary employment agencies being used to undermine worker rights, which was committed to under the Action Plan.
Additional Labor Ministry inspections occurred last week in the port sector – but outcomes are not known. Advocates for port workers allegedly fired for exercising basic rights expressed concern that the recent inspections did not cover this anti-union conduct.
Finally, the Colombian Attorney General should develop a concrete structure for guidance and training for its regional prosecutors on all aspects of Article 200 and to ensure that the main (Bogota) office can provide oversight in implementation.
Violence/Impunity. There have been clear efforts to address viol
ence against workers. Protection efforts have been developed. However, widespread impunity remains a major challenge, and as discussed last week with the new Fiscalia, there still is lacking a clear plan for the prosecutions of violence against workers and union leaders, and the pace of investigations and prosecutions remains slow.
At the time of consideration of the FTA, I urged that there be a clear reference to the Action Plan in the implementation bill, which would have provided important additional context for the enforcement of the obligations on fundamental workers rights. The decision not include such a reference, done because of House Republican opposition, was a mistake. The omission makes it all the more vital that we have a clear understanding of what is expected under the Action Plan, what has been done, and what remains to be achieved.
Photo by Elliot P.