In July 2016, the U.S. Department of Labor accepted the first labor petition filed under Chapter 17 of the U.S.-Colombia Trade Promotion Agreement (TPA). Filed by Colombian trade unions and the AFL-CIO, the fundamental argument of the petition is that the Government of Colombia failed to meet its commitments under the 2011 U.S.-Colombia Labor Rights Action Plan (LAP) which were a pre-condition for the U.S. to extend preferential trade benefits to Colombia. USDOL’s public report on the petition is due in January 2017 unless USDOL determines more time is necessary.
Critical among those commitments were (a) effective implementation a new legal framework to investigate and punish threats and violence against trade unionists; (b) putting a stop to employers’ use of intermediaries and certain types of employment contracts to chill representative trade unionism and avoid compliance with labor laws; and (c) ensuring that labor inspection, administrative and dispute resolution processes respond to worker complaints and deter employer violations. Over 2,500 trade unionists have been murdered in Colombia since the 1980s. These murders and threats did not stop after the U.S.-Colombia TPA went into effect in 2012.
A lot is at stake this year for Colombia. Not only did the Government of Colombia and FARC agree to a Peace Accord ending the 52-year-old Civil War, but Colombia is being considered for accession to the Organization for Economic Development (OECD), where it would join Mexico and Chile as the only Latin American members.
Many of the labor-related commitments the Government of Colombia made during TPA negotiations are also required for accession to the OECD. If USDOL’s Chapter 17 report confirms petitioners’ allegations, Colombia could be subject to international dispute resolution and lose trade benefits under the TPA – and could jeopardize Colombia’s bid to become a member of the OECD.
The OECD formally launched Colombia’s accession process in October 2013. This rigorous process subjects Colombia to assessment under 250 legal instruments and formal evaluation by 21 separate committees, including the Employment, Labor & Social Affairs Committee.
The OECD’s Roadmap for Colombia’s accession outlines several labor-related policy goals to be met, including: improvement of labor market opportunities for women, youth, older people and the unskilled; a financially and socially sustainable retirement and social support system; assistance for the poor and out of work; and better management of migration flows to foster integration of immigrants and their children. Critically, the Roadmap calls for Colombia to implement policies to ensure effective governance of the labor market and to “ensure the full respect of labour rights, with a particular focus on the rights and safety of trade union representatives” (p. 18).
The OECD released its review of Colombia’s Labour Market and Social Policies in January 2016. Much of the OECD’s analysis mirrors the issues raised by Colombian unions and the AFL-CIO in their USDOL petition. Three of these areas are: (1) inadequate protection of trade unionists from ongoing threats and violence; (2) shortcomings in labor law administration and enforcement, including weak labor inspection and fine collection processes; and (3) the tendency among Colombian employers to utilize civil law contracts so workers do not benefit from rights in the Colombian Labor Code and making it difficult for workers to effectively organize independent trade unions and bargain collectively.
The OECD observes that 20 trade unionists were murdered in 2014 and that there were over 300 assaults, threats, harassment and other kinds of violence perpetrated against trade unionists that same year. The OECD cites conflicting reports about the motivation for murders of and violence against trade unionists – whether as a result of their role as trade unionists or local leaders standing up to armed groups – but emphasizes that improved prosecution of the crimes in close contact with trade unions during investigation would promote greater clarity as to why the violence occurred. While the Colombian protection program for trade unionists has improved, the program faces a number of challenges such as budget cuts, a lengthy and laborious process for assessing threat risk against trade unionists and corruption scandals that demonstrate inadequate controls.
In addition to discussing and assessing fundamental labor rights issues, the OECD’s review of Colombia’s labor and social policies highlights the country’s need for better social security (including unemployment) policies that are more broadly applied. Over 52% of Colombia’s workforce is self-employed, with 83% in unregistered businesses not covered by social security.
Observing that comprehensive reform to the Colombian social security and pension system is required, the OECD highlights a number of specific policy recommendations to incentivize more Colombians to participate in social security. Only about 35% of the Colombian population in retirement age receives a pension – in contrast to 90% on average in the OECD. Acknowledging Colombia’s introduction of a new unemployment protection system, the OECD notes that the system is underfunded and provides limited support to job seekers.
Many of the structural labor market issues noted by the OECD such as informal work and non-participation in the social security system have a bigger impact on women than men. Despite the fact that female labor market participation in Colombia has increased over the last few decades, 20% of women aged 16-24 are not active in the labor market or studying (Not in Employment, Education and Training or NEET) compared to 1% of men. In addition to higher unemployment rates than men and lower participation in formal employment, women in Colombia suffer from a “large and persistently stable gender pay gap” (p. 16). Fewer women receive health protection or contribute toward a retirement pension so look forward to poverty in their old age. Laws were passed in Colombia in 2010 and 2011 to make sex discrimination in pay unlawful and extend maternity leave from 12 to 14 weeks, but many Colombian women do not benefit from these protections because they work in the informal sector.
Critics have argued that the Government of Colombia may not be ready for or be deserving of OECD membership or special access to markets and free trade benefits because of ongoing human and labor rights violations. This may be true. The Colombian case shows that OECD and U.S. conditionality can contribute to a safer and better society in Colombia though many challenges remain.