Ratified treaties;¹ Instruments not subject to ratification²

Freedom of association/ Conditions for the exercise of union activities/ Prohibition of the requirement of prior authorization for the constitution of a union/ Direct resolution of a dispute on the basis of international law

A case was filed with the Court requesting a declaration of the unconstitutionality of articles 371, 372 and 391 of the Substantive Labour Code (Código Sustantivo del Trabajo, CST) since a number of citizens considered that the aforementioned provisions violate the Political Constitution and ILO Convention No. 87 (specifically, articles 2, 3 and 8 of the Convention). Nevertheless, the Court only ruled on the charge brought against article 372, since the other articles have already been ruled on and there is an existing res judicata.

Article 372 of the CST establishes that no union can function as such, nor exercise the functions and rights that the law and its respective statutes grant it unless its act of constitution is registered with the Ministry of Employment and Social Security.

The Court began its analysis by examining article 39 of the Colombian Constitution, which guarantees the right to freedom of association without the intervention of the State, and proceeded to compare this article with various international standards such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, among others, and the ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). As a result of this study the Court concluded that the right to freedom of association is a fundamental right which encapsulates other rights and freedoms such as the freedom to join and relinquish membership of a trade union, the ability to constitute and organize the structure and functions of such organizations and automatically constitute them as legal entities without the interference, intervention or restriction of the State, among others.

The Court then referred to the constitutional block which consists of the text of the Political Constitution and those standards and principles which, although they do not formally appear in the aforementioned text, are used as parameters to control the constitutionality of laws. The Court recognizes that ILO Convention No. 87 belongs to the aforementioned block. Thus, the Court proceeded to compare the legislation subject to the claim (article 372 of the CST) with article 39 of the Constitution, Articles 2, 3 and 8 of the aforementioned Convention and other international standards. The Court observed firstly that it is valid for the law to establish restrictions, since the autonomy granted to the unions does not exclude the obligation to respect the law.

The Court then referred to the text of the Constitution and Article 2 of ILO Convention No. 87 in order to make it clear that the unions exist in a legally valid manner based on their constitution without the intervention or prior authorization of the State by means of a declaration of collective will, which the constitution stipulates must be recorded in the relevant register. The Court stressed that in relation to third parties the declaration of intent to constitute a union only has legal effect when it is communicated to those third parties:

“This is the effect of the principle of public disclosure, which has a predominantly rational foundation in the sense that, in general, legal acts only take effect when they are known, in a real or presumed way, to their target group (…)

With this in mind, the expression “its [the union’s] legal recognition will be established by the simple act of registering its constitution” set out in article 39 of the Constitution must be understood in accordance with the principle of public disclosure, in that the aforementioned recognition does not consist in the granting of legal status to the union, or in an act issued by the State declaring its existence to be valid but in the enforceability or legal entry into force of its constitution with respect to the State in its condition as a third party (…).”³

With this in mind, and taking into account that article 372 could be interpreted in the sense that the registration of the act of constitution of the union before the Ministry of Employment and Social Protection is a requirement for the existence or validity of the union, thus meaning that the standard violates article 39 of the Public Constitution and Article 2 of ILO Convention No. 87, the Court declared the article constitutional in the sense that the aforementioned registration has the exclusive purpose of public disclosure, without authorizing the aforementioned Ministry to carry out prior control over the contents of the act of constitution.

¹ ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);  International Covenant on Economic, Social and Cultural Rights; American Convention on Human Rights; Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (Protocol of San Salvador).

² Universal Declaration of Human Rights, 1948.

³ Section 21 of the decision.