The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers

Transcription

1 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers Lauren Damme

2 About DĒmos Dēmos is a non-partisan public policy research and advocacy organization. Headquartered in New York City, Dēmos works with advocates and policymakers around the country in pursuit of four overarching goals: a more equitable economy; a vibrant and inclusive democracy; an empowered public sector that works for the common good; and responsible U.S. engagement in an interdependent world. Dēmos was founded in Miles S. Rapoport, President Tamara Draut, Vice President of Policy and Programs Author Bio Lauren Damme is a Policy Advisor to the International Program at Dēmos. She is also a Policy Analyst in the Economic Growth and Next Social Contract programs at the New America Foundation. Board of Directors Current Members Stephen Heintz, Board Chair President, Rockefeller Brothers Fund Miles Rapoport, President Marc C. Alexander Professor of Law, Seton Hall University Ben Binswanger Chief Operating Officer, The Case Foundation Raj Date Chairman & Executive Director, Cambridge Winter Christine Chen Strategic Alliances USA Amy Hanauer Founding Executive Director, Policy Matters Ohio Sang Ji Partner, White & Case LLP Rev. Janet McCune Edwards Presbyterian Minister Clarissa Martinez DeCastro Director of Immigration & National Campaigns, National Council of La Raza Arnie Miller Founder, Isaacson Miller Wendy Puriefoy President, Public Education Network Copyright Amelia Warren Tyagi Co-Founder & EVP/COO, The Business Talent Group Ruth Wooden President, Public Agenda Members, Past & On Leave President Barack Obama Tom Campbell Juan Figeroa Robert Franklin Charles Halpern Sara Horowitz Van Jones Eric Liu Spencer Overton Robert Reich David Skaggs Linda Tarr-Whelan Ernest Tollerson Affiliations are listed for identification purposes. As with all Dēmos publications, the views expressed in this report do not necessarily reflect the views of the Dēmos Board of Trustees Dēmos: A Network for Ideas & Action

3 Table of Contents Summary 1 The Role of Labor in Colombia s Development 2 Legal overview: Colombia Labor Law 4 Law: Freedom of Association, the Right to Strike, and the Right to Collective Bargaining 5 Reality: Freedom of Association, the Right to Strike, and the Right to Collective Bargaining 6 Law: Collective Pacts 11 Reality: Collective Pacts 11 Law: Associative Work Cooperatives 11 Reality: Associative Work Cooperatives 12 Law: Elimination of Discrimination in Employment and Occupation 13 Reality: Elimination of Discrimination in Employment and Occupation 13 Labor Rights and the Uribe Administration 14 The U.S. Colombia Free Trade Agreement: Labor 17 Summary of Chapter 17: Labor 17 Labor Impacts and the FTA: Are the Labor Provisions Strong Enough? 18 The FTA and U.S. Leverage over Colombia s Labor Situation 20 Policy Recommendations 23 Conclusion 26 List of Sources 27 Endnotes 32 Contact 35

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5 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 1 Summary This brief explores the impacts of the trade promotion agreement (referred to as the FTA) between the U.S. and Colombia on labor and labor rights in Colombia and offers policy recommendations to Congress and the Administration. The report first provides an overview of the labor situation in Colombia, drawing upon interviews with NGOs, advocacy organizations, academic experts, government officials, and labor representatives in both Colombia and the United States. Second, it provides an analysis of trade promotion agreement as it relates to Colombia s labor situation and explores the impacts of the FTA upon different social and economic sectors. Finally, the briefing provides guidance for how Congress and the Obama Administration should go forward to ensure that the trade agreement with Colombia improves, rather than erodes, labor standards and worker rights in Colombia. As Congress considers the ratification of the U.S.-Colombia Trade Promotion Agreement, Colombia s labor situation has become the central obstacle to its passage. While most analysts agree that the FTA is relatively unimportant to the U.S. and will have minimal to no effect on output or employment, 1 it could have strong effects on Colombian workers. Moreover, there is concern about Colombia s commitment and ability to uphold the labor standards in the FTA given its poor history of respecting labor rights and unionism. Proponents of the FTA have high hopes for how it might positively affect Colombia s economy and political situation, as well as Colombian workers. The preamble to the United States-Colombia FTA, signed February 27, 2006, states that the pact aims to: Promote broad-based economic development in order to reduce poverty and generate opportunities for sustainable economic alternatives to drug-crop production; Create new employment opportunities and improve labor conditions and living standards in their respective territories; Protect, enhance, and enforce basic workers rights, strengthen their cooperation on labor matters, and build on their respective international commitments on labor matters. Will the FTA live up to these labor goals and promote broader development in Colombia? This brief attempts to answer these questions. First, we examine the role of labor in Colombia s development. Second, we provide an overview of Colombian labor law and its current implementation. Third, we analyze the labor chapter of the FTA and its probable impacts on Colombian labor. Last, given this analysis, we offer a set of policy recommendations for Congress to consider in regard to ratification of the FTA and steps that could improve the situation for Colombian workers.

6 2 The Role of Labor in Colombia s Development Broadly-based economic development improves the livelihoods of people throughout a society. In a labor-rich and capital-poor country like Colombia, broad development must be based upon the country s ability to involve and utilize its greatest resource: labor. An estimated 60 percent of Colombia s 18.2 million workers work in the informal sector, and most of these receive less than the minimum wage. 2 Of the 47 percent of Colombian workers who do receive salaries, only 23 percent earn higher than the minimum wage, work under the maximum limit of 48 hours per week, and are affiliated with a social security, health, and pension program. 3 In 2009, about 4.5 percent of the workforce was unionized. 4 Colombia also suffers from high levels of inequality in the distribution of both wealth and land. The poorest 20 percent of the population accounts for less than three percent of earnings, while the richest 20 percent takes home about 64 percent of the national income and the richest 10 percent take home fully 50 percent of earnings. 5 Land distribution is extremely important in a society in which 3.4 million people work on small, isolated land holdings and produce 40 percent of the food consumed in the country. However, just 0.5 percent of landowners possess 60 percent of Colombia s land. 6 All these conditions militate against broad based economic development in Colombia. Currently, a majority of its 18.2 million working people face significant obstacles to sharing the fruits of any prosperity and achieving economic security. Raising and enforcing labor standards helps to level the bargaining power of employers and employees, ensuring that the benefits of economic growth are more widely shared. Respect for such standards also accomplishes other development goals. For instance, reducing the worst forms of child labor helps ensure that more children get an education instead of going to work, which leads to a more skilled workforce and better future for a nation. Likewise, reducing discrimination in employment helps ensure more women and ethnic minorities become a part of the workforce, which allows developing countries to utilize more of their human capital and increase social inclusion, leading to greater political stability. Respect for the right to form unions and collectively bargain is especially critical in advancing development. These rights promote better working conditions, less wage inequality, less exploitation of vulnerable workers, and more investment in the skills of workers, enabling them to compete in the global marketplace. The contribution of trade unions to the reduction in wage inequality is a well-established empirical finding, noted a 2008 report by the International Labor Organization (ILO). Recent economic studies have increasingly recognized that collective bargaining has a positive effect on wages without much negative impact on the overall employment or economic performances. 7 Other research has demonstrated the linkage between unionization and skills development and increased wages and benefits. 8 The United States has a strong interest in raising labor standards worldwide. Nations that experience more growth and widely shared prosperity, in part thanks to higher labor standards, can become bigger markets for U.S. exports and investments, and can become more democratic and politically stable. Higher labor standards abroad also help reduce the degree to which foreign workers can undercut workers in the United States. This won t matter in regard to goods and services where disparities in labor costs are so vast that it makes no sense to keep jobs in the United

7 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 3 States. But it will make a difference if the benefits of outsourcing are more marginal. There is less incentive to move jobs overseas if corporations are going to encounter the same set of labor regulations that exist in the United States, such as minimum wage laws, workplace health and safety protections, unemployment insurance, workmen s compensation, and required contributions into social insurance programs that provide health and retirement security. To both support development and allow U.S. workers to reap the rewards of higher global labor standards, the U.S. government should push its trading partners to raise their labor standards and also assist them in the implementation of labor laws. In the case of Colombia, strengthening labor law enforcement is especially important due to 1) the country s large, vulnerable working population, and 2) the country s poor record in protecting both human and labor rights. Ideally, a trade agreement with the United States would help to create more shared prosperity by reducing the obstacles to economic security that Colombian workers face. This could be the case if the FTA did, in fact, serve as a lever or catalyst to help raise labor standards and ensure better enforcement of such standards. The U.S. seems to be in an especially strong position to influence Colombia s actions due to Colombia s greater relative economic dependence upon the U.S. for trade: the U.S. is Colombia s largest trading partner, importing $13.09 billion in goods from Colombia in 2008 (a 30 percent increase from 2007, although the recession has shrunk imports about 20 percent), whilst Colombia was the 29 th largest U.S. import supplier, accounting for less than one percent of U.S. imports in In addition, Colombia is one of the foremost recipients of U.S. aid, receiving $663 million in grant aid in 2009, contributing to an estimated $7.9 billion in aid from Will the passage of the FTA increase or decrease U.S. capacity to influence Colombia s labor situation? The next section gives a brief outline of Colombia s current framework of labor law. Based upon a series of interviews with Colombian rights activists, unionists, and government officials, the section attempts to shed light on the differences between theory and reality in Colombian labor rights today, focusing especially the state of syndicalism in Colombia.

8 4 Legal overview: Colombia Labor Law As shown below in Figure 1, Colombia has ratified the eight core ILO conventions on labor rights outlined above which are automatically incorporated into the domestic legislation. 11 In addition, Colombia s Substantive Labor Code (Código Sustantivo del Trabajo), provides further detail on labor legislation. Figure 1: List of International Human and Labor Rights Conventions Ratified by Colombia UN covenants on human and worker rights International Covenant on Economic, Social and Cultural Rights, ICE- SCR International Convention on the Elimination of All Forms of Racial Discrimination, CERD International Covenant on Civil and Political Rights, ICCPR Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW Convention on the Rights of the Child, CRC Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict ILO Fundamental Conventions from the 1998 Declaration of Fundamental Principles and Rights at Work Convention No. 29 on Forced Labor Convention No. 87 on Freedom of Association and Protection of the Right to Organize Convention No. 98 on the Right to Organize and Collective Bargaining Convention No. 100 on Equal Remuneration Convention No. 105 on the Abolition of Forced Labor Convention No. 111 on Discrimination (Employment and Occupation) Convention No. 138 on the Minimum Age for Admission to Employment Convention No. 182 on the Worst Forms of Child Labor None of these steps toward labor protections cover workers in the informal economy: an estimated 60 percent of the Colombian workforce. This legislation and the Substantive Labor Code apply only to workers with an official contract of employment, leaving independent contractors, the self-employed, and informal sector workers unprotected and without rights. In 2002, in support of a request for an International Monetary Fund stand-by loan of $2.1 billion, the Colombian government undertook significant and controversial pension and labor leg-

9 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 5 islation reforms with the aim of reducing the cost of labor and thus increasing employment in the formal sector. These included reform of the pension scheme to increase minimum contribution periods, push back the age of retirement, and increase the contribution rate of workers. Citing the inflexibility of the formal labor sector and high labor costs as the reasons for Colombia s large informal sector, the reform, which was eventually passed as the controversial Law 789 of 2002, extended daytime working hours, reduced overtime payments for labor, and decreased severance payments. 12 Current President Alvaro Uribe also undertook public sector reform to reduce spending and debt at the behest of the IMF. As a result, the Ministry of Labor and Social Security and the Ministry of Health were downsized and merged to create the Ministry of Social Protection (MPS), a decision that has severely weakened the ability of the government to protect workers rights. 13 MPS is now the lead ministry in the administration and enforcement of labor legislation. According to the U.S. Department of Labor (2008), at the end of 2006, MPS conducted 29,267 administrative investigations, sanctioning 2,904 businesses (about 10 percent of those inspected) and imposed fines of 7.3 billion pesos, or $3.6 million USD (about $1240 per business at the September 2009 exchange rate). The efficacy of these fines in enforcing labor legislation is unknown. However, according to the AFL-CIO, the MPS currently has 273 inspectors for all of Colombia s 18.2 million strong workforce, meaning that each inspector is responsible for almost 67,000 workers. 14 The rest of this section provides a brief overview of the Colombian legal framework in two of the four core areas: 1) Freedom of association and recognition of the right to collective bargaining, and 2) elimination of discrimination in employment and occupation. Due to the scope of this briefing, the serious issues of human trafficking or Colombia s widespread problems with exploitation of child labor and forced labor will not be addressed. 15 Law: Freedom of Association, the Right to Strike, and the Right to Collective Bargaining The Substantive Labor Code and Constitution recognize the right to form trade unions and the right to collective bargaining. 16 Until 2008, labor unions were subject to the approval of MPS before they could legally function (including strike), and the MPS denied 253 union registrations between 2002 and Although the Colombian Supreme Court has divested the MPS of this capacity, regulations implementing the rulings have not yet been put into effect. In addition, employers continue to dispute the registration of the union, violating ILO Conventions 87 and When a union represents more than one-third of a company s employees, all employees are covered by collective bargaining agreements, rather than just union members. The Substantive Labor Code expressly prohibits employer attempts to interfere in a worker s decision to join a trade union, through either discrimination in employment, bribery (including higher wages or other benefits), or other types of pressure. It also states that employers cannot dismiss, suspend, or change the working conditions of employees in the process of establishing a trade union, although this is not necessarily the case in practice. 19 For example, under Law 789 of 2002, a company may divide its production units, prohibiting labor relations between the units and thus prohibiting the formation of a single union, the continuation of an existing union, or collective bargaining as a single unit. 20 The minimum number of 25 employees needed to register a union is also prohibitive to the freedom of association and right

10 6 to collective bargaining of Colombian workers, as most workers are situated in employment environments with less than 10 coworkers, and if they are not, the company can divide into smaller units, as described. Employers also undermine unions and their bargaining power by offering certain employees incentives (such as better wages or working conditions) to keep them from joining a union. 21 Both the constitution and Substantive Labor Code protect workers right to strike (if they have a contract of employment, as mentioned), but a strike can be declared illegal for a number of reasons, in which case the employer can fire all workers involved, including union members. 22 For example, Article 416 of the Labor Code prohibits workers and unions in services deemed essential by the government, or all public services, from striking or collective bargaining, although the ILO CEACR has found that many of the areas in which strikes are banned are not necessarily essential. 23 For example, in 2005, the government declared a strike by union workers at a stateowned oil company ECOPETROL illegal, leading to the dismissal of 253 union members. 24 Federations and confederations of trade unions also cannot declare strikes: a regulation the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has asked the Colombian government to change. 25 If a worker is dismissed as a result of an illegal strike, they can be blacklisted from employment in the public sector for 10 to 15 years, a practice the ILO s Committee on Freedom of Association (CFA) found to be inconsistent with the principles of freedom of association and a serious threat to trade union rights. 26 The Constitutional Court of Colombia ruled this exception of public employees from the right to collective bargaining to be unconstitutional due to Colombia s ratification of the ILO conventions (151 and 154) on the right to collective bargaining. 27 In February 2009, the Uribe Administration issued Decree 535, which purportedly provides bargaining rights to public sector employees, but only allows for the submission of a respectful request by employees every two years (concertación), which the government has no obligation to accept. 28 Also in response to the 2005 ruling against Article 416, the government created a tripartite committee (acuerdo tripartito) to create bargaining legislation and to develop methods to combat impunity in unionist assassinations, and to promote and enforce signed ILO labor conventions. The Tripartite Committee includes the three biggest labor union federations (CUT, CGT, and CTC), worker representatives, and government officials. 29 Reality: Freedom of Association, the Right to Strike, and the Right to Collective Bargaining I am worried about the deaths of unionists, but I am even more worried about the death of unionism. Julio Roberto Gómez, CGT Secretary General, (Interview, 2009) The Secretary General of CGT, the second largest union confederation in Colombia, has good reason to be worried. Violence against unionists is aimed more at erasing gains they have made in protecting their freedom of association and their right to collective bargaining than at the unionists themselves. 30

11 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 7 The State of Unionism According to the ENS SISLAB (sistema de información laboral y sindical), a department of the labor school that compiles and disseminates information on Colombia s labor system, about 4.5 percent of the 18.2 million strong workforce was unionized in 2009, or about 822,000 workers. These workers belong to 2,933 unions. 31 Colombian unions have the option of joining one of three union confederations to help consolidate their bargaining power and expand their voice at national and international levels. The largest federation is CUT (Central Unitaria de Trabajadores), representing 527,542 members and 731 unions. The second largest is CGT (Confederación General de Trabajo), with 120,329 members and 540 unions. The third is CTC (Confederación de Trabajadores de Colombia), with 45,307 members and 167 unions. 32 The generally weak state of Colombian unions can be attributed to the physical danger of being a union member, but it is also a result of a private sector that is deeply unfriendly to unions. The government and private sector have supported growth in other forms of employment that undermine Colombians rights to association and to collective bargaining, as will be detailed below. Obstructing Freedom of Association: Violence Against Unionists Colombians should have the right to organize, and still live Lisa Haugaard, Latin American Working Group (Interview 2009) Colombia is well-known for being the most dangerous place in the world for unionists more unionists are killed in Colombia each year than in the rest of the world combined. Unionist assassinations are a serious obstacle to unionists right to live, much less Colombian workers freedom of association and right to collective bargaining. In 2008, of the 76 labor activist murders documented by the 2009 Annual Survey of Trade Union Rights Violations, 49 were from Colombia. This marks a 25 percent increase from 2007, when 39 were murdered. In 2009, at least 34 labor unionists were assassinated in Colombia. In the past 23 years, from January first, 1986 to August 7 th, 2009, 2,704 unionists have been killed, or about one unionist murder every three days. In addition, 4,418 union members have received death threats, 1611 have been forcibly displaced, and at least 10,364 violations against their life, liberty, and integrity have been recorded. 33 From (about the Uribe Administration s tenure), the International Confederation of Free Trade Unions (ICFTU) records that 609 unionists have been killed, compared to 297 in the rest of the world. 34 More precisely, since Uribe came into power on August 7 th of 2002, 505 unionists have been murdered. 35 However, the often quoted number of more than 2,700 unionists killed in the past two decades used to directly discredit the Uribe Administration is misleading, as assassinations have decreased by 73 percent since he came into office (as shown in Figure 2). Colombian unionist assassinations have also become a smaller contribution to worldwide murders of unionists, from 83 percent of assassinations in 2001 to 65 percent in 2008, and the general trend of murders has declined (see Figure 2 on page 8). Still, Figure 2 shows a trend of setbacks for every gain.

12 8 Figure 2: Tracing Colombian Unionist Murders, Worldwide Unionist Assassinations Colombian Unionist Assassinations Source: Compiled from International Confederation of Free Trade Unions (ICFTU) annual surveys of violations of trade union rights, Still, Figure 2 shows a trend of setbacks for every gain, and falling assassination numbers may only mask increases in other serious violations of unionists rights, such as the more low profile death threats. Many Colombian interviewees told Dēmos that the negative international publicity that stemmed from high-profile unionist killings has led to the use of more shrewd methods for intimidation of those who defend both labor and human rights. These methods are often more effective precisely because they are relatively lower profile than murders. The composition of human rights violations 762 in 2008 alone are shown in Figure 3 below. Figure 3: Human Rights Violations Against Colombian Unionists, Type of violation Threats Forced displacement Homicides Arbitrary detention Harassment Attack with or without injuries 12 8 Disappearance 2 5 Torture 2 3 Illegal raid 4 1 Total Source: Sinderh database, Escuela Nacional Sindical, Cuaderno de Derechos Humanos no. 21, 2009.

13 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 9 In the interviews Dēmos conducted with unionists, academics, senators, and human rights groups in Bogota from 29 th June to 4 th July 2009, every interviewee could cite examples of intimidation via death threats, threats to loved ones, assassination attempts, forced displacement (exile), wiretapping, and/or physical following of family and children. Many of these numbers do not show up on the frequently-quoted assassination statistics but reflect the campaign of fear that helps to suppress union activity. Who exactly is responsible for these violations? The lack of effective investigation means that only estimates are possible. From 1986 August 2009, the alleged perpetrator of unionist murders is known in only 598 of the 2,704 murders that have been committed, or in only 22 percent of cases. Figure 4: Who is Committing Crimes Against Unionists? 2007 Paramilitaries, 38 Violations, 9% State Actors, 27 Violations, 9% Guerillas, 11 Violations, 3% Unknown, 342 Violations, 82% Source: Escuela Nacional Sindical report on human rights violations against Colombia unionists, Figure 5: Who is Committing Crimes Against Unionists? Guerillas Paramilitaries In those 598 cases, the ENS estimates that paramilitaries are the alleged perpetrators of 65 percent of unionist murders, while 23.4 percent are committed by guerrillas and 8.2 percent by public (state) forces. 36 Figure 4 shows the 2008 ENS estimate of those responsible for the 418 rights violations against unionists in the year Most assume the government is behind much of the violence and intimidation against unionists, acting as intellectual authors even if the violations are carried out by paramilitary groups, a belief that has been given increasing credit as more scandals involving members of the Uribe party and their ties to paramilitary groups (known as parapolitics ) have come to light, a situation addressed further in the Labor Rights and the Uribe Administration section below. The state has been directly connected with extra-judicial killings of 49 unionists since 1986, most of which have occurred during the Uribe administration. In each case, the unionists were subjected to prior human rights violations by the state in conjunction with paramilitary groups and then presented as guerrillas or civilians killed in combat State Actors Unknown Sources: Escuela Nacional Sindical, Informe sobre la Violación a los Derechos Humanos de los y las Sindicalistas Colombianos en el Año Escuela Nacional Sindical. Report on human rights violations against Colombia unionists, Figure 5 goes on to compare the change in crime authorship in years At first glance, Figure 5 would appear to show a decrease in state and paramilitary actions against unionists. Howev-

14 10 er, the number of violations in which the perpetrator is unknown has increased in recent years, as has the number of overall human rights violations against unionists. Thus it may be that perpetrators are improving their ability to commit these crimes anonymously, making accusations more difficult for human rights defenders. Aside from the very real threat of violence, the personal costs of being a unionist run deeply through daily life. They are publicly and privately stigmatized by the government, being labeled as members of guerrilla groups, enemies of the state, or communists. This can then lead to being targeted for murder by paramilitaries affiliated with government officials or the Colombian military itself. 38 When asked about his security situation and its effects on everyday life, Tarcisio Mora Godoy, the president of CUT, the largest Colombian labor federation, stated that My mobile phone is tapped. The government listens to everything I say. If I tell someone, I ll meet you at this place and time, they know. So I ask you, do you want to invite me to your house? Unionists therefore face obstacles to their work and lives on several fronts. According to the Solidarity Center, Selective and systematic violence against union leaders and members reinforces anti-union strategies used by private employers and the Colombian state, thus merging government repression with anti-union discrimination. 39 The unknown factor of violations of unionists human rights is only made possible by the extraordinary levels of impunity for these crimes. Impunity The largest single obstacle to worker rights in Colombia today is the climate of violence with impunity, since the right to live is a fundamental prerequisite for the exercise of any other right. The Solidarity Center Violence against unionists will continue until aggressors are held accountable for their actions. A study of the courts system nationwide has concluded that the 111 sentences (referring to 118 unionist deaths) that have convicted the defendants of homicide lead to a 95.6 percent impunity rate for unionist murder in Colombia. Impunity rates for other violations, such as physical attacks, death threats, kidnappings, and forced displacement, range from about 99 to 100 percent, leading to an overall impunity rate of 98.3 percent for violence against unionists. 40 In mid-2007, under international pressure from labor and human rights groups and national pressure from an administration keen to sign a trade agreement with the U.S., the Attorney General began investigating crimes against unionists under a special subunit. The subunit has not opened investigations on all of the unionist murders that occur each year, meaning that the judiciary system falls further behind each year. In 2009, the ENS reports that one case of the 34 unionist murders is being investigated. In 2008, 49 cases were reported to be closed, but 49 unionist assassinations occurred, meaning that no net progress was made. 41 However, of the 2,704 unionists killed since 1986, the Attorney General recognizes only 1,354 cases and in July 2009 had only physical records, meaning that, at best, the subunit is investigating only about 40 percent of the cases. 42 However, of the 1,546 victims to which these cases refer, about 35 percent do not refer to actual unionists, but to other victims, and the ENS estimates that the subunit is investigating only about 25 percent of all unionist murders. 43

15 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 11 The Law on Justice and Peace of 2005 (Ley 975 de 2005 Ley de justicia y paz ) was passed to address the problem of impunity as the government negotiated the demobilization of paramilitary groups. 44 The law guides the legal process of rapidly trying and sentencing paramilitaries, who receive a maximum of 5 to 8 years imprisonment in exchange for the full confession of their crimes in freely given confessions (versions libres). However, the law s weak sanctions for the torture, abduction and killing of unionists and impossible time in which prosecutors must file suit (60 days) has led it to be dubbed the Law of Impunity, according to the International Confederation of Trade Unions. 45 The ICFTU states that the law does not guarantee that truth will be established, as it does not address the clarification of the crimes that have been perpetrated, or include any criticism of the political and intellectual leaders of the groups responsible for the crimes. Law: Collective Pacts Union-negotiated collective bargaining agreements apply to all workers in a firm when the union members represent more than one third of the workforce. When a union represents less than a third of a workforce, employers can directly create agreements, or collective pacts (pactos colectivos), with their employees as an alternative to negotiating a collective bargaining agreement through a union. Law 50 of 1990 legalizes collective pacts, which are registered with but not monitored or controlled by the MPS. 46 Because the Substantive Labor Code predominantly refers to collective bargaining agreements as those between unions and employers and because pacts are legally recognized as separate entities, the legislation protecting the labor rights of workers does not apply to employees in collective pacts, a loophole which is used by employers to avoid labor regulations and weaken unions. 47 Reality: Collective Pacts In 2006, collective pacts covered almost 62,000 workers in Colombia. 48 But ENS researcher Hector Vasquez finds that in the majority of cases, collective pacts do not represent real negotiations in which workers can autonomously make requests and elect their representatives, but to the contrary, are imposed by the company through threats, giving the workers no alternative but to accept the terms of the agreement. 49 This view is widely acknowledged. In practice, collective pacts are used as a strategy to undermine union formation and activity, and to provide incentives or threats to get workers to leave unions. The ILO CEACR has observed incidences in which businesses, the government, and the judicial system gave preference to nonunionized workers and collective pacts over agreements with trade unions. 50 For example, when workers in the cut flower industry tried to form a union in 2001, their company imposed a collective pact and took away benefits, transportation expenses, lunch money, seniority and vacation pay from the unionized workers while they were negotiating a contract, in direct violation of the law. 51 Law: Associative Work Cooperatives Another form of employment that impedes workers rights to collective bargaining is associative work cooperatives, or CTAs (cooperativas de trabajo asociado). 52 These are groups of five to twenty employees who act as both workers and managers to agree upon terms of a contract (work rules, provision of social security, and compensation) with an employer. 53 Upon their establishment,

16 12 CTAs were not subjected to the labor legislation applicable to dependent workers. 54 This is because CTA associates are contracted as temporary workers to another employer upon whom they are not deemed dependent. According to these laws, the goal of this form of employment is to generate and maintain work for their associates in an autonomous, self-sustaining, self-governing manner. However, the CTAs are widely recognized as a vehicle for employers to decrease costs by avoiding labor regulations and their responsibilities to workers. 55 In an attempt to address U.S. concerns about Colombia s lack of respect for international labor standards, 56 the Colombian government issued Decree 4588 in 2006 (Decreto 4588 de 2006), although the decree fails to bring employees in CTAs under the protection of the Substantive Labor Code. In a further step, in 2008 the government sanctioned Law 1233, which commanded CTAs to contribute the equivalent of 9 percent of wages to three social security organizations, including the Colombian Family Welfare Institute (Bienestar Familiar) from January 1, However, although employers normally pay two-thirds of these contributions, CTA employees must pay 100 percent of these contributions. The ALF-CIO has shown that these contributions cut the earnings of a CTA worker earning the minimum wage by 42 percent. 58 This is a serious problem as Colombia s minimum wage already does not provide sufficient income to purchase the basic market basket of goods for a family of four, according to the U.S. State Department. 59 Cooperatives are now monitored and controlled by the Superintendent of Economic Solidarity, but they are still solely responsible for the payment of social security (health, pension, and workman s compensation) of their workers. Small cooperatives billing less than 220 million pesos per year, or just over $110,000 USD, are exempt from any of these responsibilities. 60 Reality: Associative Work Cooperatives Despite these changes in the regulation of CTAs, there is continuing outcry about the labor rights abuses that have resulted from the widespread growth in the use of CTAs. CTAs have spread rapidly across Colombia, from 732 covering 55,496 workers in to over 3,000 in 2007, encompassing more than 400,000 workers. 62 The growth of CTAs is widely recognized to have had a negative impact on workers rights, limiting their opportunities to form unions and allowing employers to evade the Labor Code and other legislative protections for workers by subcontracting workers via the CTA. In 2004, 75 percent of cooperatives were found to have worker abuse or other irregularities by the Colombian Government. 63 The government has finally recognized that CTAs constituted a delaborization of the workforce in contradiction of the ILO core conventions. 64 Still, the passage of Decree 4588 of 2006 and Law 1233 of 2008 does not force employers to respect labor rights. However, there is some public opposition to CTAs in the Colombian government. Senator Cecelia Lopez commented that CTAs have led to increased informality of the formal sector, leading to jobless growth, and that the vast majority of CTAs operate outside of labor law with the approval of the government, which has no political will to change the situation. 65 The Senator also stated that altering the laws will not be effective in changing the way cooperatives operate because the CTAs are not controlled by the government anyway.

17 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 13 Law: Elimination of Discrimination in Employment and Occupation The Constitution of Colombia obligates the government to promote equality in working opportunities and to protect and support those who are vulnerable, marginalized, or discriminated against on the basis of gender, race, national or family origin, language, religion, political opinion, or philosophy. 66 The Labor Code recognizes the equality of all workers and the right to equal protections and guarantees by the law. 67 Passed in 2006, Law 1010 prohibits employment discrimination, defining it as different treatment on the basis of race, gender, family or national origin, religious creed, political preference, social status, or other factors not pertinent to employment. 68 Law 1010 (Article 6) further requires employers to prevent and resolve workplace harassment issues through confidential mechanisms, although victims can contact local labor inspectorates, police, or municipal representatives. Penalties for employment harassment are set by the Disciplinary Code and the Substantive Labor Code, or Law 1010 itself, which requires fines from both the harasser and company, in addition to a requirement for the employer to pay 50 percent of medical treatments and other costs resulting from the harassment. The Colombian legal framework also contains laws specifically protecting women, people with disabilities, and members of indigenous and Afro-Colombian groups from discrimination in the workplace. 69 For example, Law 581 of 2001 aims to support the adequate and effective participation of women in decision-making levels in different branches of public institutions 70 However, the legislation has been criticized for failing to clearly express the principle of equal remuneration for work of equal value, which would ensure that work that is different but of equal value is fairly remunerated. 71 Reality: Elimination of Discrimination in Employment and Occupation For many Colombian workers, especially women and people of indigenous and Afro-Colombian descent, daily reality is far removed from these legal protections. Women According to the U.S. Department of Labor, 72 Colombia has made great strides in promoting women s rights, especially in the realm of employment. However, persistent problems exist. Although women constitute 58 percent of the workforce of Colombia, 73 they earn 23 to 30 percent less than men 74 and are 1.4 to two times more likely than men to be unemployed, depending on their location. 75 Most female workers are in the informal economy, and are thus unprotected by labor law, disproportionately increasing their exposure to poor and unstable working conditions, sexual harassment with impunity, forced pregnancy tests and dismissal due to pregnancy. 76 Indigenous and Afro-Colombian Groups Members of Afro-Colombian and indigenous groups make up over 20 percent of the population of Colombia. 77 Although the government of Colombia does not track labor statistics for indigenous and Afro-Colombian groups, The Colombian National Planning Department 78 reports that Afro-Colombian men earn from 70 to 80 percent of wages earned by non-afro-colombi-

18 14 ans. However, Afro-Colombian civil servants earn only 21 percent of the wages earned by non- Afro-Colombians. 79 Labor Rights and the Uribe Administration One cannot be democratic without recognizing the importance of unionism. Senator Jorge Enrique Robledo, (Senate Hearing, 2008) Uribe is not convinced of the value of human rights. In this sense, he is not a real democrat. Senator Cecelia Lopez (Interview, 2009) The Uribe Administration, which came into power in 2002, has been largely unsupportive of labor rights in favor of more neoliberal economic policies aimed at stimulating the economy through support of capital-owners, rather than labor. However, as discussed earlier, in Colombia, broadly-based economic development is not possible if the working class does not share in the fruits of prosperity, which requires protection of their labor rights. The Uribe Administration does not have a strong track record in this area. Laws such as 789 of 2002 have reduced workers earnings and benefits in favor of private sector capital-owners. 80 The Uribe Administration has backed Law 50 of 1990, which the Solidarity Center argues trumps much of the core labor legislation because it gives employers broad power to dismiss workers on grounds of business necessity, weakening labor protections. Government-backed growth of unregulated CTAs has led to devastating social and laboral consequences in Colombia as workers are stripped of their constitutional rights. 81 Legal strikes have been militarized by the government, declared to be against national interests, and discredited as being affiliated with FARC, which has lead not only to death threats against strike leaders, but to the murder of unionists associated with the strikes. 82 The ILO CEACR has received testimony from Colombian unions against the administration on cases of the restructuring, closure, and reopening of public institutions, during which the government has fired unionized workers and hired non-unionized workers in their place with restrictions upon their ability to organize. 83 The Uribe Administration has also publicly stigmatized the work of human and labor rights defenders. In a letter to the Colombian government, the AFL-CIO condemned a February 2009 incident in which President Uribe publicly labeled human and labor rights defenders as the intellectual bloc of FARC. This stigmatization condones and encourages the harassment of unionists by employers and paramilitaries. Total violations against unionists under Uribe are shown on the next page in Figure 6.

19 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 15 Figure 6: Violations Against Unionists Under the Uribe Administration, August 7, 2002 August 7, 2009 Type of Violation Number of Cases Percentages Threats 2, % Homicides % Forced displacements % Arbitrary detentions % Harassment % Attack with or without injury % Disappearances 32.8% Illegal search 29.7% Kidnappings 26.7% Torture 19.5% Total 3, % Source: Death Isn t Mute. Cuaderno de Derechos Humanos no. 21, Escuela Nacional Sindical, Medellin, Colombia. November The Ministry of Social Protection (MSP), which should be safeguarding workers rights, is widely regarded as being underfunded and lacking political will, possibly due to the violence and the threats of dismissal or violence against judicial officials. 84 When Dēmos asked an unnamed government official (Interview, 2009) what the Colombian government needed to better implement labor laws, he said, nothing, going on to state that there was nothing wrong with the government s current implementation of labor law, and that in the end, it is up to the private sector to follow laws. The administration s attitude towards labor rights has become higher profile with the arrest of Jorge Noguera, Uribe s former chief of DAS, Colombia s equivalent of the CIA. DAS was tasked and funded to protect unionists from paramilitary attacks. Noguera has been arrested as a part of a parapolitics scandal in which over 40 members of Congress have been detained and 83 investigated for their collaboration with paramilitary groups. 85 Noguera was arrested for allegedly handing a hit list to paramilitary group which included the names of 23 trade unionists, almost all of whom were subsequently killed or forced to flee the country. He has been accused of putting DAS at the service of the paramilitaries. 86 Uribe s DAS has continued to be involved in illegal wiretapping and surveillance scandals in which detailed files on labor and human rights activists, including sensitive information about their DAS-provided protections, have been provided to the DAS departments conducting extensive illegal surveillance. This surveillance has been found to cover all those who pose potential threats to the Uribe administration, including opposition party members, clergy, human rights defenders, journalists, academics, unionists, and union federations. 87 Uribe has so far managed to escape personal implication in these scandals, but at the same time has floated a proposal in Congress to allow any politicians implicated in a scandal to avoid prison.

20 16 Indeed, extra-judicial killings of unionists attributable directly to security forces have increased 250 percent under Uribe. 88 Extra-judicial killings, or falsos positivos, are civilian murders committed by army soldiers in which the army dresses the civilian bodies as combatants to increase their body count and demonstrate results. To address U.S. worries over Colombia s respect for labor rights, the government of Colombia has pointed to the Tripartite Committee (Acuerdo Tripartito) as evidence of their efforts to promote labor rights. 89 However, the three biggest union federations have reported that these consultations don t function with regularity and are undermined by authorities. 90 Due to this hostile climate, the federations report that they have tried to focus on areas of common interest which may be easier to agree upon, but without better results. In reference to the implementation of the agreement, CUT, CGT, and CTC state that an exchange of opinions occurs during the consultations, but that they cannot perceive any government interest in negotiation or compromise. As the President of CUT, Tarsicio Mora Godoy, told Dēmos, In the meetings, the government asks us what we need and we tell them what we need. They then dismiss us, and change nothing. 91 The Uribe Administration is rightly credited with increasing security and weakening FARC, but the systematic erosion of social protections has seriously undermined the social movement for rights and unions, without which Colombia cannot promote broad development. Some voices within the government, such as those of opposition senators Cecelia Lopez and Jorge Robledo, have argued for better social protections and respect for labor rights. However, these senators are currently in the minority and can thus effect little change on their own.

21 The Likely Impact of the U.S. Colombia Trade Promotion Agreement on Colombian Workers 17 The U.S. Colombia Free Trade Agreement: Labor Upholding labor standards in any country with a large, unregulated informal sector is difficult even if the political will to do so exists. But Colombian government attitudes towards labor rights are indifferent at best, and hostile at worst. Dēmos was told by one official in the Ministry of Industry, Trade, and Tourism that, it is up to the private sector to implement labor laws in the end, not the government, in response to worries that the FTA will drive the Colombian private sector to increase competitiveness by lowering costs through reductions in employees pay and benefits. As a response to concerns in the U.S. Congress about Colombian labor issues, the Colombian government argued that the FTA will lead to increased development in Colombia, which will then lead to improved human and labor rights. 92 This seems questionable, since in order for the FTA to promote broad-based development in Colombia, development must involve the working class, which will require promoting and protecting labor rights. Without the political will of the current administration to support labor rights, who will the FTA benefit? Does the free trade agreement present an opportunity to improve labor standards and respect for labor rights in Colombia? In an attempt to answer these questions, this section first briefly outlines the labor provisions in the FTA before analyzing their strengths and weaknesses. It then examines economic and labor impacts of the FTA on vulnerable labor sectors of the Colombian economy, including workers in rural areas, indigenous and Afro-Colombian workers. Finally, it looks at how enactment of the FTA would affect the U.S. capacity to influence Colombia s labor standards. Summary of Chapter 17: Labor First, Articles 17.1 and 17.2 affirm both the U.S. and Colombia s commitment to respect core international labor standards, as outlined by the ILO s Declaration on Fundamental Principles and Rights at Work. These include: freedom of association; the effective recognition of the right to collective bargaining; the elimination of all forms of compulsory or forced labor; the effective abolition of child labor and the worst forms of child labor; and the elimination of discrimination in respect of employment and occupation. Article 17.3 further requires that both parties shall not fail to enforce labor laws...in a manner affecting trade or investment between the U.S. and Colombia. All people with legally recognized interests have access to an independent tribunal to enforce these labor laws (Article 17.4). A Labor Affairs Council and a contact point within each country s labor ministry is established in Article 17.5 to oversee the implementation of Chapter 17 labor provisions. Although these entities may make recommendations (by consensus), they have no ability to enforce decisions. The contact point does, however, facilitate cooperative labor consultations (Article 17.8), which are a mandatory precursor to solving disagreements via the dispute settlement mechanism. Article 17.6 and Annex 17.6 establish a Labor Cooperation and Capacity Building Mechanism, overseen by the Labor Affairs Council, which promotes cooperation on labor issues related to the ILO Declaration, as well as improvement of labor relations and administration, inspectorates, dispute resolution, and working conditions, amongst others. An important final clause (4) of the annex on public participation includes a requirement for each party to consider the views of its worker and employer representatives, as well as the views of other members of the public.