By: Isabella Gandini, Senior Associate of Norton Rose Fulbright
The mining-energy sector comprises a significant percentage of the Colombian workforce. With the latter in mind and at the current juncture it is important to mention the labor effects derived from the approval of the Free Trade Agreement (FTA) with the United States on October 10, 2011. It is worth noting that the FTA has had strong contradictors since their discussion among which are employees of the industry in question.
In Colombia, the workers’ centrals and the Alternative Democratic Pole party, among others, have been strong opponents. In the United States, some congressmen also opposed its approval when the Democrats influenced by the American unions that rejected the implementation of said treaty reached a majority in the congress of that country.
According to Urrego, special envoy to Cartagena to the Summit of the Americas1, the unions requested the non-implementation of the FTA. “Specifically, it was the International Service Employees Union (SEIU) that made the request, as recorded by various international press offices.”
Placing ourselves in the current situation of our country and after the implementation of the FTA, criticism and opponents do not cease. Despite plans to improve labor relations and the implementation of numerous measures, several companies in the mining and energy sector are still questioned.
Challenges and advances in labor matters
At a labor rights hearing of the mining-energy sector in eastern Colombia held in November 2012, Senator Alexánder López Maya pointed out breaches of the labor action plan. Among them, the senator listed poor conditions of health, outsourcing and the violation of the right to union association, among others.
The Colombian and US governments committed to implement a labor action plan to protect labor rights and prevent violence against union leaders3. Currently, significant progress has been made in these activities.
The following measures are highlighted within the 2011-2013 labor action plan:
- Reorganization of the Ministry of Labor
- Strengthening of the labor administration system
- No impunity for violence
- Social dialogue
- Technical assistance of the International Labor Organization (“ILO”)
Another notable advance is the issuance of a series of rules aimed at controlling some abuses and implementing more rigorous measures. For example, the norms that regulate the use of temporary services companies (Decree 4369 of 2006), the norms to sanction labor intermediation by associated labor cooperatives (Decree 2025 of 2011), increase of labor inspectors ( Decree 1128 of 2011 and Decree 1732 of 2012), the penal sanctions for the violation of the rights of assembly and association (Law 1453 of 2011), norms to repair the families of trade unionists victims of violent acts (Law 1448 of 2011), and the new labor inspection law (Law 1610 of 2013), among others.
These advances reflect the opportunity with which the business sector has to calm the criticism and demonstrate another reality. Our legislation conforms to ILO standards, so we cannot allow a discourse to continue to show that there are not enough labor standards in Colombia4. What must be worked on is to improve compliance figures. It is time for companies to initiate audit processes to review their standards of compliance with the standards and develop interdisciplinary areas on labor and social responsibility aspects that involve workers and the communities where the projects are executed.
Get to work to get better working conditions
It is worth noting that as a result of the issuance of Law 1610 of 2013, fines can amount to up to 5,000 legal monthly minimum wages in force, a measure that motivates employers to rigorously fulfill their obligations.
Hence the need to implement strategies that discourage the presentation of complaints and investigations by labor authorities. Especially in a sector as sensitive as mining, which includes complex factors such as: work areas, special shift systems and demand for foreign personnel, as well as physical and psychosocial risks, among others.
It is a reality that the country is making efforts to guarantee decent working conditions that have led to the implementation of more control measures by the labor authorities. Therefore, companies must be prepared for inspection.
Consequently, it is convenient to carry out internal reviews, through the implementation of audits in labor, social security and social responsibility. In these processes, the role of the areas of human management is fundamental and its success will depend largely on the interaction that can be generated with the areas of social responsibility to adopt common strategies and positively impact human capital.
On the other hand, companies must take advantage of the participation spaces created by the law such as: labor coexistence committees, occupational health joint committees and prior community consultation processes, among others.
Thus. greater trust is generated, a favorable work environment and the sense of belonging to companies is raised. This also means that workers and communities play an active role in companies to implement good practices, achieve high compliance standards and improve the perception of their workers.