The Supreme Court of Justice recalls what the right to information of workers' organizations consists of

In this regard, below we will briefly review what the Court stated in the aforementioned decision, and other relevant decisions regarding this right, and its implications for companies.

¿What is the right to information?

The right to information, in the words of the Court, is "a fundamental right and a necessary presupposition for the full exercise of union activity, the right to collective bargaining and the democratic participation of workers in the company" (Ruling SL1309-2022).

Similarly, on other occasions this corporation has recognized the importance of the delivery of information of interest to the union organizations by the employer, to the extent that this allows the effective participation of such organizations and the efficient execution of union activities, which contributes to social and business progress (Ruling SL2008-2021).

¿What information may workers request in the course of collective bargaining?

Since there is no specific regulation on the matter in the Colombian legal system, the Court has referred in its various decisions to the recommendations issued by the International Labor Organization (ILO), particularly 129 of 1967 (communications within the Undertaking), 143 of 1971 (workers' representatives) and 163 of 1981 (collective bargaining).

From its study, it has concluded that workers' collectives have the right to know:

• The social situation of the company, which includes everything related to jobs and involves the transfer of data related to their general conditions (hiring, transfers, salaries, termination of the employment relationship), description of tasks and position in the company structure, explanation of decisions that have an effect on the situation of workers, health and safety regulations, labor welfare services, among others.

• The economic situation of the company, which covers the general situation of the company and prospects or plans for future development and involves the provision of accounting and financial information and in general the data that allow to know its current and future productive situation.

All the above provided that it is not confidential information or that according to objective criteria may cause serious damage to the company.

¿What happens to the right of reservation of trade books?

First of all, it should be remembered that according to Article 49 of the Code of Commerce, trade books are understood as "those determined by law as mandatory and the auxiliary books necessary for a complete understanding of the same".

Although there is no exhaustive list in this regard, the following are some of the most relevant trade books according to the national regulations in force:

• Corporate books: Here we find the Minute and Shareholders' Record Book and the Partners' Record Book.

• Accounting books: Such as the general ledger and balance sheet, the inventory and balance sheet books and the journal.

• Financial statements: These include the balance sheet or statement of financial position, income statement or profit and loss statement, statement of changes in equity and cash flow statement or statement for the period.

Now then, Article 61 of the Code of Commerce establishes that:

"The books and papers of the merchant may not be examined by persons other than their owners or persons authorized to do so, except for the purposes indicated in the National Constitution and by order of a competent authority [...]"

To that extent, this information is legally reserved because its improper handling has the capacity to compromise the competitiveness and reputation of the business organization.

Notwithstanding the foregoing, the Court, both in Ruling SL1309-2022 and in other rulings on the right to information, has emphasized the importance of sharing information on "the progress and future prospects of the company and the present and future situation of the workers" for the effective exercise of collective action.

Particularly in Ruling SL4864-2021, it referred to the delivery to the union of the duly approved balance sheet and profit and loss statement, stating that since these documents contain valuable information on the business activity and its future, "it is understandable and praiseworthy that the workers may know and understand this information, not only to understand how they can be affected or benefited by the management of the productive unit, but also, if the conditions are given to request better labor prerogatives and the possibility of adjusting to the situation of the company, preserving the source of employment".

¿Who then decides what information can be shared?

Article 19 of the Substantive Labor Code, with respect to the rules of supplementary application, states that in the absence of a rule applicable to the specific case, "those regulating similar cases or matters, the principles derived from this Code, jurisprudence, custom or usage shall be applied, the doctrine, the Conventions and Recommendations adopted by the Organization and the International Labor Conferences, insofar as they do not oppose the social laws of the country, the principles of common law that are not contrary to those of the Labor Law, all within a spirit of equity”.

Referring then to what has been established by the Jurisprudence and the ILO Recommendations, those who must determine the information to be delivered are:

1. The company and the trade union organization, by mutual agreement, during collective bargaining.

1. Once the direct settlement stage has been exhausted, the arbitrators of the Arbitration Court shall be responsible for ruling in equity on information relating to the economic and social situation of the company, provided that it is necessary to negotiate with full knowledge of the facts.

In this case, the arbitrators must analyze and weigh whether the disclosure of certain information is confidential and may objectively harm the company to the point of affecting the essential core of its entrepreneurial freedom, such as when access to the trade or accounting books is sought, in which case access could be limited or possibly conditioned to the trade union organization's commitment to keep it confidential and warn that failure to comply with this confidentiality may result in legal liabilities (Ruling SL2008-2021).

With all of the above, it is evident that, although jurisprudence has made considerable progress in regulating the right to information of trade union organizations, there is still a long way to go, particularly with respect to the type of information that can be shared, in order to harmonize business activity and labor guarantees.