Ratified treaty;¹ Work of international supervisory bodies²

Freedom of association/ Right to strike/ Legitimacy and ownership of the right to strike/ Restrictions on the right to strike/ Demands pursuable through strike action/ Political strike action/ Use of international law as a guide for interpreting domestic law

Public proceedings of unconstitutionality were brought against two interpretations of articles 429 and 450 of the Substantive Labour Code (Código Sustantivo del Trabajo, CST) which ascribed an economic and professional purpose to strike action and established that strike action would be illegal when it pursued any other purpose.

The plaintiff felt that the CST standards partially challenged violate the Political Constitution, as well as various international instruments, since they impede, in a discriminatory and unreasonable way, the ability to strike of workers belonging to unions, union federations and confederations that do not make a claim of the kind outlined above, disregarding the fact that the Constitution does not establish any distinction in this respect that could be relevant in making such a judgement.

In order to clarify the legal problem presented by this case, the Court referred to the scope and meaning of the constitutional guarantee of the right to strike in the Colombian legal system. Following this examination of the legal system, the Court presented the following conclusions:  

“[…] the guarantee of the right to strike has boundaries that are well-defined by the constitution, of which we can highlight its relative nature; with regard to its exercise, it is conditioned to the sphere of the laws that regulate it, which in developing that right must take into account its primarily labour related, collective, universal and pacific nature, and in particular its primary purpose of defending the economic and professional interests of workers.”³

The Court then looked to establish the type of demands pursued by the strike that are protected by the body of principles established by the International Labour Organization (ILO) by means of its Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations. In particular, the Court cited the comments published by the Committee regarding the right to strike, which define it as an essential corollary of the right to organize protected by ILO Convention No. 87 as one of the fundamental rights afforded to workers and workers’ organizations “solely to the extent to which it constitutes a method of promoting and defending their economic and social interests”. Moreover, it took into consideration that:

“The Committee on Freedom of Association considers that ‘strikes of a purely political nature … do not fall within the scope of the principles of freedom of association’. It also indicated that ‘[i]t is only in so far as trade union organizations do not allow their occupational demands to assume a clearly political aspect that they can legitimately claim that there should be no interference in their activities’. […] Nevertheless, according to the Committee on Freedom of Association, workers and workers’ organizations should be able to express their dissatisfaction with economic and social matters affecting their interests (...) [but] the action of workers should be limited to expressing a protest and not have the aim of disturbing the public peace.

[…] The Commission also considers that organizations whose role is to defend the socio-economic and professional interest of workers should, in principle, be able to have recourse to strike action to support their positions in search of solutions to problems deriving from important economic and social policy issues, which have immediate consequences for their members and workers in general, in particular in the sphere of employment, social protection and living conditions.”⁴

In light of the pronouncements of the ILO Commission of Experts and the ILO Committee on Freedom of Association, the Court concluded that the articles subject of the proceedings, when interpreted in strict terms, do not violate the text of the Constitution. Thus, the Court decided to declare the provisions constitutional, although it placed conditions on their interpretation, with the understanding that the purposes of strike action (economic and professional) do not exclude strike action taken to express positions related to social, economic or sectorial policy that directly affect the exercise of the relevant activity, occupation, trade or profession.

¹ ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

² ILO Committee on Freedom of Association; ILO Committee of Experts on the Application of Conventions and Recommendations. 

³ Section 5 of the decision.

⁴ Section 4 of the decision.