Constitutional Court, Plenary Session, Benjamín Ochoa Moreno republic action of unconstitutionality, 17 May 2000, C-567/00
Political Constitution of the Republic of Colombia
(...) The international labour Conventions, duly ratified, form part of domestic legislation (…).
Article 93, paragraph 1
The international treaties and conventions ratified by Congress that recognize human rights and prohibit their restriction in states of emergency prevail in domestic order. The rights and duties consecrated in this Charter shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.
Freedom of association
Direct resolution of a dispute on the basis of international law
Freedom of association/ Multiple trade unions/ Unions registration/ Direct resolution of a dispute on the basis of international law
The plaintiff questioned the constitutionality of Colombian law that does not allow the coexistence of more than one trade union based in the same company and requires the entering of the trade union in a state register.
Firstly, the plaintiff claimed that the prohibition of more than one trade union violates trade union freedom by limiting the possibility of establishing a new trade union if there is already one in that company.
The Labour Ministry, when replying to the claim, supported the constitutionality of the law, arguing that allowing one sole trade union ensures unity in trade union representation and therefore contributes to the success of trade union activity.
On the basis of art. 39 of the Constitution of Colombia, which guarantees all workers the right to establish trade unions, and of art. 2 of Convention No. 87 of the ILO, which form part of the so-called “block of constitutionality”, the Court ruled that the limitation on the establishment of trade unions limited trade union freedom and was unconstitutional.
Secondly, the plaintiff stated that the requirement to enter the trade union in the state register violated trade union freedom, in that as administrative demands were imposed on the recognition and conduct of the trade union activity this implied a sort of prior state authorization.
The plaintiff based his claim on the Constitution of Colombia and on ILO Convention No. 87, these being laws that guarantee the right to establish trade unions without state intervention.
The Court observed that the Colombian legal system provides for two stages at the beginning of trade union activity: firstly, one in which the creation of the trade union takes place at the assembly that decides upon it and where the obtaining of its legal status is automatic on its creation; and a second one in which the trade union is already established and has legal capacity, when it asks to be registered in the public register for the purpose of ensuring publicizing of its existence as a trade union body among third parties, which is in violation neither of the Constitution nor of ILO Convention No. 87.
Analysing the registration process, the Court noticed that the legislation provides for the event that the administrative authority may reject the registration, stating reasons of “good practice”. For the Court, this subjective and broad criterion was unconstitutional, it being intervention by the State that exceeded its authority in the establishment of trade unions by limiting the exercise of a right, contrary to the contents of article 39 of the Constitution and ILO Convention No. 87. Moreover, the legal provision is unconstitutional in that lack of registration, suspension or cancellation of the registration of the trade union could arise from an administrative decision, breaching the requirement that these sanctions only be applied by legal ruling, as established in article 39, section three, of the Constitution and article 4 of ILO Convention No. 87.
Consequently, the Court, on the basis of the Constitution of Colombia and ILO Convention No. 87, declared the power of the administration to refuse, suspend or cancel registration of a trade union entity due to reasons of “good practice” and without legal intervention to be unconstitutional.