Ratified treaties;¹ instruments not subject to ratification² 

Trade union organizations/ Telework/ Public policy/ Reference to international law to strengthen a decision based on domestic law

Various citizens brought an action of unconstitutionality against two sections of Law 1221 of 2008. The first provision subject to the action was article 3, which defined the actors eligible to participate in the creation of public policy on telework. The claimants considered that the legislator had made a legislative omission by not including trade union organizations in the process of designing public policy to promote telework. In the claimants’ opinion, this omission constituted a breach of various provisions of the Constitution which enshrine the principle of participation in decision-making of those actors affected by the public policy in question.

The Court referred to the scope given to the right of participation in decision-making processes by national case law, indicating that this right was not limited solely to the electoral or state sphere; rather, it included other spaces where decisions are made that affect the lives of citizens. The Court considered that article 3 of Law 1221 of 2008 excluded from its provisions the representation of workers, who should have been included since policy on telework would have a direct impact on their interests, fundamental rights and the minimum working conditions enshrined in the Constitution.

Finally, the Court focused on establishing whether trade unions were a valid form of representation of workers’ interests. To this end, the Court referred to national case law to indicate that trade unions represented worker interests, and that this was one of the general functions of trade unions. The Court referred to the provisions of ILO Conventions Nos. 87 and 144, stating that:

“Article 2 of ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) establishes that: ‘Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.’

[...] ILO Convention No. 144 [...] establishes the obligation of ensuring workers’ representatives can exercise the right to participation, in particular in the context of trade union rights.”³

Similarly, the Court expressly underlined that:

“The provisions of existing international labour conventions and recommendations – in particular, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); and the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113) – enshrine the rights of employers and workers to establish free and independent organizations and call for the adoption of measures to promote effective consultation on a national level between public authorities and workers’ and employers’ organizations”.⁴ 

From this analysis of the aforementioned ILO Conventions and Recommendation, the Court concluded that there was a legislative omission related to the exclusion of workers, represented by the trade unions, from participating in the elaboration of public policy concerning telework, without sufficient justification for that situation. The Court found that this omission constituted a breach of the right to participation of workers; however, in order to avoid the overturning of the law affecting the existence of public policy on telework, it declared article 3 of the Law constitutional on condition that trade union organizations were able to participate in the design of such policy.