The result is that today 2 out of 3 strikes are declared illegal by the court for 3 reasons, essentially: “Therefore, instead of being promoters of an illegal condition, these workers are victims who have systematically suffered a violation of their fundamental labor rights, violations that also affect the health system. After all, a healthy work portfolio is a necessary element for the proper functioning of the service,” the decision reads. They could cooperate with unions that have been declared illegal strikes by the court because the court has distanced itself from ILO recommendations in all cases. It must be said to the Labour Chamber of the Court that many of its judgments are null and void for incompetence, as in the case of Anthoc`s strike, in which it did not have the power to declare it illegal because it was the expression of the protest of the unions and the civic exercise of the mobilization. This will at least allow the Court to reflect on how it will continue to rule on strike cases. Secondly, point 2.3 of the final peace agreement contains legislation on the right to protest and mobilise social workers in order to create a democratic opening. Last April, a consultation was held in which more than a thousand social organizations participated. The CUT presented a full text of an agreed draft law on strike guarantees. It is still waiting for the administration to rush to submit a draft to Congress and for the discussion to take place. We must present this proposal from the CUT, present it to Congress, organize events and other things, not calm the issue and take for granted the absolute rejection of the regulation of the strike by the employers. The ILO also states that it is not permissible to dismiss the perpetrators of a strike declared illegal. But in Colombia, the consequences of their illegality are the dismissal of those who participate, or the dissolution of the union and the indexation of damages for the company. This provision alone shows that the right to strike is not a right, but a prohibition.
Although this is the legal basis, the Court confirmed that these grounds do not in themselves carry sufficient weight to terminate a worker`s contract. “The mere fact of organizing and/or participating in an illegal strike is not sufficient grounds for dismissal,” the Supreme Court said. Excuse me, could you tell me in which document I can find the ILO rules on partial strikes? However, María Angélica Ramírez, a lawyer specializing in labor law at Panigua & Tovar Abogados, recalled that before the start of a legal strike, there must be a pre-agreement phase. “This happens when there is a negotiation between the employer and the employee. That way, you have time to negotiate workers` interests,” Ramirez said. But in my opinion, the most worrying thing, because it concerns the structure of the right to strike itself, concerns the ownership of the strike. In Colombia, labour inspectors deny trade unions ownership and pass it on to workers and companies. They argue that they have the right to call a vote to end a strike if they cannot.
The only one who has the power to start and end a collective bargaining dispute is the union, not the company or the workers. This happened in Drummond, where the unions declared a strike, but the workers voted to lift it, and then the department called an arbitration tribunal and the Supreme Court declared the strike illegal. One problem that has not been resolved is that the strike in Colombia cannot be legally carried out by trade union confederations and federations. Although, if they do it in practice, but not in the private sector, but in public, the case of strikes that Fecode makes. Article 5 of ILO Convention No. 87 stipulates that federations and federations must have the same legal rights as trade unions. There is therefore a violation by the Colombian State. “To the strike for non-respect of work, we must therefore add the social protest in defense of the very quality of the health service by which the workers intended to make their complaints heard by the municipal and departmental authorities. The ILO also recognizes partial strikes, such as the one recently carried out in Barcelona, Spain, by security forces at the airport, and only by them, not by the rest of the workers. And it recognizes local strikes, which would take place, for example, if the workers of the Éxito warehouse of the 80 in Bogotá had the majority to vote for the strike in this camp alone.
But they can`t because the law doesn`t allow them to. Another fact that restricts the right to strike in the legal sphere concerns the way in which judges exercise this right. Since Law 1210 of 2008, the declaration of illegality of the strike corresponds in first instance to the labour chambers of the courts and then to the labour chamber of the Supreme Court. This law was adopted in response to the ILO`s request that the illegality of a strike can only be established by judges and not, as has been the case in the past, by the Ministry of Labour. Photo USO, Frente Obrero Rereading Cinep`s book “Rise and Fall of the Strike,” which shows the ups and downs of strike practice in Colombia since the 70s, we found that at that time there were an average of about 160 strikes per year. In the nineties and almost all […] The Colombian company has great capacities to limit strikes and collective bargaining. It limits them through law and jurisprudence, stigma and the role of the Ministry of Labour. Therefore, the most important aspect of the recent teachers` strike is that they could not delegitimize it, they could not call it an uprising or use the words with which they stigmatize the workers` protest. The second is that the strike is not peaceful. CSE calls an unpeaceful strike illegal. It is a question of defining what is peaceful, because every strike from a material point of view causes damage. For the Supreme Court, a strike that causes damage is no longer peaceful and illegal.
If the strikers kidnap all the workers and close the company, it causes damage, as if they are hanging banners and blocking the entrance; And when they organize rallies, they call them riots. That is, all practices that are normal in strikes today are peaceful and harmful. This is the most common reason in cases of strikes declared illegal by the court. And thirdly, for the necessary procedures. The Court notes that the conditions and procedures, as well as the majorities for voting on a strike, apply to all types of strikes. However, since the types of strikes are not regulated, any protest by workers is declared illegal because, in the court`s opinion, it does not meet the requirements set out in CSE. And in Colombia, too, businessmen have closed ranks. They hardened against any expression of workers` protests. They call a whole strike and want to ban everything. And in this, they have been supported by the decisions of the Supreme Court. Almost all failed strikes were declared illegal.8 The legal difficulties are therefore immense. As a result, strikes that employers describe as illegal have a very high probability of being declared illegal by the Supreme Court.
According to the Ordinary Supreme Court, strikes that are not regulated by the Substantive Labour Code in the field of (contractual) collective bargaining, such as those motivated by solidarity, public order or the employer`s misconduct, are not subject to prior procedures, such as authorizing the cessation of assembly activities or carrying them out within certain time limits. What is important is that the constitutional guarantee be exercised to defend the economic and social interests of workers. It is a right that is enshrined on a broad front, with the only limit not to suspend essential public services. In order to better understand the Court`s interpretation of article 450 of the Material Labour Code in relation to this practice, it should be pointed out that strikes are protected by article 56 of the Political Constitution and constitute a right which is not illegal in itself and must be respected.