The nearly three-year-old US-Colombia Labor Action Plan (LAP) has not only failed to alleviate serious labor problems in the country, but has allowed the situation to “worsen,” United States Representatives George Miller (D-CA) and Jim McGovern (D-MA) said Tuesday.
The congressmen published a report, appropriately titled “The US Colombia Labor Action Plan: Failing on the Ground,” that contained a full analysis of the program, but as a “snapshot” of the effect of the LAP between 2011 and August, 2013.
After meeting with over 50 workers, union leaders and labor lawyers for several days in Colombia’s capital, Bogota, and the southwestern cities of Buenaventura and Cali, the report specifies that the two representatives identified three main problems: first, indirect employment is still “pervasive and growing;” second, the inspection and regulatory system is not working; and third, the right to organize is being denied and still “a lack of justice prevails.”
“In Colombia, there are 22 million people who work to support themselves and their families, but fewer than 8 million have contracts, pensions or other indicators of formal employment with full labor protections. The remaining 14 million workers lack the most basic labor rights, such as the right to organize,” said the report.
In terms of the prevalence of indirect employment, these figures are staggering considering that “both the Colombian and U.S. Governments proclaim that the commitments of the Labor Action Plan have been accomplished.”
One example of how the objectives of the LAP have not been met concerns third-party subcontractors or cooperatives (CTA) or any agency that seeks out ‘self-employed workers’ without the intent to hire them or abide by labor laws. The LAP ostensibly banned these entities. Yet in 2012 there were still over 2,890 CTAs or similar organizations operating in Colombia. And the report claims that more temporary agencies were springing up with the intention of evading the law in question.
There has also been a huge proliferation of phony union contracts that employers push on laborers. Company owners will allow workers to form ‘unions’ with as few as three people, and then the company does not have to claim responsibility for rights guaranteed by Colombian law such as “social security, health, and pension payments.” The phony union becomes responsible for those necessities. These types of contracts have grown from just three in 2009 to 400 in 2012.
This section of the report pointed to Colombia’s biggest airline Avianca as an example of a company that has half of its near 7,000 workers subcontracted, and 2,289 of those subcontracted employees were not formalized with official contracts.
“It is not clear what action, if any, the Ministry of Labor is pursuing to continue the process and formalize the remaining 2,289 illegally subcontracted workers,” said the report.
Inspector and Inspection Failures
One of the largest provisions of the LAP included the creation of at least 100 inspectors that would enforce fines and check up on employers. According to the government this number has risen to 624 inspectors, and is expected to hit 904 in 2014. However, the report illustrates that many of these inspectors were hired from a civil service program, and thus their “credentials are in question.” Even after discovering violations, there is no evidence of an effective system to prosecute the employers.
According to the reports, there have been problems assessing the quality of the inspections as well. “[There is a] lack of follow-through from inspectors in sharing the information they collect from site visits with their supervisors; and the absence of meaningful public information generated by the inspectors regarding the number of violations with respect to intermediary labor arrangements and freedom of association.”
While the number of inspectors has gone up, the number of site visits has decreased from 644 in 2011 to 548 in 2012.
Finally, the report claims that the businesses do not make the process easier for the inspectors, often refusing the inspections access to information.
Of the near 3,000 cases of CTAs, temporary service agencies, and similar organizations mentioned earlier, there were only 83 total preventative inspections in 2012. Only eight of those cases led to investigated in the same year.
In terms of fines, the Colombian government has reported a total of $73 million worth of fines imposed on employers, of which not a single penny has been collected. Minister of Labor Rafael Pardo balked when asked about this lack of execution, saying that “it’s not under [my] jurisdiction,” according to the report.
Fear to Unionize and a Lack of Justice
“Large-scale fines were levied against 10 plantation owners for violating basic labor rights; yet not one penny has been collected. Meanwhile, more than 200 labor leaders have had to flee the area either from threats of violence or due to blacklists, effectively breaking the unions,” said the report.
Currently only 4% of Colombia’s workers belong to unions, primarily due to “anti-union violence and fear of reprisals from employers.”
While perhaps the only glimmer of hope for laborers is that the number of murders of unionist leaders has gone down from 22 in 2012 to 11 in 2013 to date, threats, intimidation, disappearances and assaults are all “on the rise,” according to the report.
“It is difficult to affirm whether the country is in a permanent new phase of reduced levels of violence,” said the report.
The National Labor Schoool (ENS) have documented 760 threats to unionists in 2013 alone, however this does not reflect a noticeable increase. The report asserts that most threats come from neo-paramitary groups. The ENS expect more threats to come.
“ENS representatives were quick to point out, however, that anti-union violence tends to be cyclical; and in the last few years there have been lulls and peaks. As a result, Colombia may be in one of those lulls.”
The National Protection Unit of Colombia (NPU) is charged with safeguarding these workers and unionist leaders from threats and violence. The NPU is currently protecting 619 labor leaders, which amounts to 25% of their operating budget.
Trade unionists told the Representatives McGovern and Miller however that there are often many “delays and difficulties” with their security programs, usually related to lack of liquid funds when needed by the security teams. Additionally, many security schemes do not fully protect complete unions, in that one security team would be assigned to four people, resulting in each person getting one week of protection per month. This allows for serious security loopholes.
The report also documented a lot of complex levels of bureaucracy within the prosecution of those making threats, resulting in many instances of impunity.
“Killings have a level of impunity of 93.4%, while death threats have an astonishing impunity level of 99.9 percent,” according to the report.
The message seemed clear to the Representatives: “[There is a] lack of enforcement by the government.”
The report concluded with a number of specific case studies concerning discrimination and displacement in the Afro-Colombian community, laborers in the Buenaventura Port area, and sugar cane workers.
The Representatives outlined a number of recommendations for the Colombian government and the US government on moving forward. While many of these goals perhaps seem lofty considering the past three years, the report still stands behind the LAP in hopes of it rebounding in the coming years.
Steps for the Colombian government include strengthening the inspection system by prioritizing collecting fines with the hope of changing employers’ behavior; establish a system of publicly disclosing all labor related agreements between laborers and employers; set realistic and actionable short term goals addressing all issues mentioned above; and taking measures to address issues in specific case studies.
Steps for the US government include making high-level public statements drawing attention to labor rights issues in Colombia; communicating between embassies and interested US-Colombia relations parties while emphasizing the importance of these issues; undertaking investigations of their own on the situation; preparing policies related to international commerce between the two that enforces labor rights issues as well; continuing to fund ENS and other independent labor research organizations; and prior to approving more trade agreements with Colombia, making sure that improvements have been made with the LAP moving forward.
The LAP was initially conceived by US President Barack Obama and Colombia President Juan Manuel Santos in 2011 as a way to ensure that labor standards were being enforced as both governments tried to push through a long-time pending free trade agreement (FTA) between the two countries. It included measures such as creating an individual Ministry of Labour solely dedicated to workers’ rights, passing legislation to incriminate employers who were abused workers’ rights, and hiring labor inspector to enforce new regulations and fines put in place for employer abuses.
The LAP intended to provide a “roadmap” to healthy labor policy for Colombia with continuing assistance from the US. The initial idea was to wait to see how the plan would be implemented, and then upon review, go ahead with the FTA. However both governments approved the FTA bypassing results from the LAP in October of 2011.
In August of 2012, the program was reexamined briefly without many concrete findings, and in August of 2013, amidst widespread strikes by multiple sectors in Colombia, the LAP looks as ineffective as ever according to congress’ report.
The future of the LAP in Colombian is unclear at this moment.
- The US-Colombia Labor Action Plan: Failing on the Ground (Congressional Monitoring Group on Labor Rights in Colombia)