When the bill presented by the Government for the labor reform is already known and is waiting to begin its discussion in the Congress of the Republic, the Universidad Pontificia Javeriana, through its fiscal observatory, presented an alternative text, in in which initiatives on wages and contracts stand out.
According to the document, the university indicates that the proposal seeks to offer viable alternatives that contribute to reaching the necessary consensus to advance in the labor reform that the country needs at this time. It seeks to guarantee the social protection of work in broad terms, with the aim of improving the Colombian labor market.
Workday
Among the most questioned points of the government project is the working day. While the project of the Minister of Labor, Gloria Inés Ramírez, establishes that the night shift would begin at 6:00 pm, until 6:00 am, the following day, the proposal of the academic center proposes that it begin at 8:00: 00 pm
However, it is proposed that “when the labor informality rate is below 45% and unemployment is below 9% certified by the Dane by November 30 of the respective year, the night work shift of the following year will begin to starting at 6:00 p.m.
holiday surcharges
In the articles, likewise, another change is established that can be discussed in Congress and it is regarding Sunday surcharges; While the Government initiative establishes that the payment of the 100% surcharge be returned, the academics ask that an 85% increase be reached.
On the other hand, in the case of the regulation of platforms, the articles of the Javeriana University go beyond the proposal of employment relationship via government contract, and proposes that “dependent digital work will be subject to what corresponds to the rules planned for teleworking, work at home or remote work”, among other measures.
Other points raised by the letter are the guarantee of social security for migrants, regardless of their immigration status within the national territory; the gradual reduction of working hours; the increase in Sunday and holiday surcharges; the increase in paternity leave and the end of contracts for the provision of services.
Undoubtedly the labor reform presented in recent weeks by the government will continue to give people something to talk about. The President of the Republic assures that with this transformation work will be dignified and job stability will be guaranteed for all the inhabitants, but some sectors do not agree with this statement or with the articles that the Government filed.
For example, Fenalco, a union that brings together small and medium-sized companies, says that it did not “arrange” this project despite its participation in the technical roundtables; and hundreds of Rappi residents have come out to protest against the reform, although one of the flagship proposals is the protection of work on digital platforms.
Provisions
Given that the reform aims to be complete in its objective, it includes three types of legal provisions: i) Structural, which covers the way in which we understand labor relations in the center, consolidating the general principles applied in each case by the authorities and the companies themselves contracting parties, ii) Individual, which issues specific rules surrounding contractual procedures between employers and workers, and iii) Collective, mainly related to the way unions and employers interact with each other, with special emphasis on bargaining procedures collective.
employment contracts
Permanent contracts are presumed, unless a different type of contract has been agreed, which would require compliance with certain additional formalities; For example, fixed-term contracts can be drafted freely, as long as they are in writing (Colombian Congress, 1990), and even if there is a fixed term, that term can be extended as many times as the contracting parties want (Supreme Court of Justice, 2022).
The next employment contract is the one that is linked to a particular service or project. These types of contracts are valid if their object is expressly detailed without further formalities (Supreme Court of Justice, 2021), in addition, if their object continues to be too vague or unclear, it will be considered indefinite for all purposes (Supreme Court of Justice, 2022).
In the first place, any employment contract will be legally indefinite, it will no longer be just a presumption for judicial purposes. Any other type of employment contract will now be an exception to the rule, and in addition to the wishes of the contracting parties, it will require legal justification. The first major change brought about by the reform is that fixed-term contracts will no longer be subject to indefinite extensions, but their maximum legal limit will be two (2) years, all extensions included.
special protection
At the moment, The law says that companies cannot freely fire some types of workers, because they are considered to belong to particular groups that evoke a need for a certain degree of protection, in the form of state authorization before their contracts are terminated. These workers are currently
- People with certified health problems that affect their ability to work. (Colombian Congress, 1997).
- Pregnant women or spouses of pregnant women who are not formally working. (Colombian Congress, 2021).
- Union executives, founders of unions and members of Union Complaints Commissions (Colombian Congress, 2000).
- People who are less than three (3) years from meeting all the requirements to retire with a pension (Constitutional Court, 2018).
The document presented by the Javeriana University notes what will happen if these changes become law: The Ministry of Labor will probably have to improve its permit issuance capabilities to meet the growing demand from employers trying to formally terminate employment contracts. work of these groups. Employers should prepare for delays and difficulties in obtaining authorizations.
Workplace Hearings
Currently, the law says that all employers must have an Internal Work Guide, which contains any procedure related to the issuance of sanctions against workers, but the stages and guarantees are mostly left to be decided by the employers themselves (Congress of Colombia, 1951).
In the articles of the proposed changes, it is that all the procedures destined to sanction the workers must adhere to some principles dictated directly by the Law: i) Dignity, ii) Presumption of innocence, iii) Proportionality, iv) Right to present a defense and to counteract the employer’s proof, v) Probity, and vi) Good Faith. Additionally, the protocol for the issuance of sanctions must adhere to some basic steps: i) Notify the worker of the initiation of an investigation, ii) The formulation of charges against him, iii) The discovery of any evidence, iv) The declaration of a reasonable term for the worker to challenge his charges, v) The issuance of a duly motivated resolution, vi) With a reasonable sanction, and vii) A form for the worker to have the decision reviewed or appealed.
Be careful with expenses
According to DANE’s Great Integrated Household Survey, micro and small businesses account for more than half of the employment in Colombia, with informal employment between 77% and 87%, which means that a large number of workers do not has the rights and guarantees necessary for decent employment.
These data, according to Juliana Morad Acero, director of the Department of Labor Law at the Pontificia Universidad Javeriana, show that most employers do not have sufficient resources to assume new costs.
“In medium and small companies, the lowest salaries are paid, on average. They are even below the minimum and the big company pays salaries that are much higher. This shows us that it is a sector that has economic difficulties”, says the director.
For this reason, he considers that the government should be very cautious when increasing expenses for this sector because if not, “it could be the worst breeding ground for increasing unemployment and informality, taking into account the particular characteristics of our labor market.”