Criteria of the Ministry of Labor to deny or authorize overtime

The Ministry of Labor, through Circular 069 of September 20, 2023, establishes criteria to authorize or deny overtime according to the following background:

• Supplementary or overtime work is work that exceeds the ordinary working day and in any case the maximum legal working day according to article 159 of the Substantive Labor Code.
• The current regulations prohibit agreeing on exceptions to the maximum legal work day unless there is authorization for overtime provided for in Article 1 of Decree 995 of 1998, Decree 1072 of 2015.
• Resolution 3031 of August 2023 establishes companies or entities that have authorization to work overtime and do not have a specific term of validity, the duty to process an overtime request is established.
• Supplementary work cannot exceed the limits of the law and may result in sanctioning consequences.
• Requests for review of overtime are made based on criteria that exposure to excessive working hours can affect the health and integrity of workers.

According to the above, the Ministry of Labor establishes the following criteria for the overtime process:

A. Prerequisites for requesting overtime: 

According to the Ministry of Labor circular, they are summarized as follows:

1. The validity of the authorization of overtime will depend on the needs of the employer, which must be duly motivated in the request, a validity that may not exceed the term of two (2) years.
2. The employer must submit the application to the territorial address of the main domicile regardless of whether the request includes other work centers in other cities other than the main domicile of the company. Bad faith on the part of the company is presumed if the authorization is not expressed. that the overtime permit is the same for use in other geographical areas other than the main domicile and gives rise to denying overtime
3. The application must contain the detailed charges that require supplemental work authorization
4. Simultaneously, with the request for authorization of overtime, the employer must establish authorization for additional work in all workplaces or work establishments until the Ministry of Labor decides, attaching a copy of the respective application for the information of the workers and, if applicable, have the opportunity to comment on them. If you omit the previous procedure, the request for overtime is not authorized.
5. Statement by the employer of the existence or not of a union organization, collective conventions or collective pacts and, if affirmative, the name of the union, address and email must be indicated.
6. ARL certificate where the physical, psychosocial and other SST risks of positions that require working overtime are determined not to affect health and safety at work through a joint ARL and SST evaluation
7. Report the existence of epidemiological surveillance programs for risk factors related to work activities for which overtime is being requested.
8. The internal work regulations
9. Relate relevant part of the RIT to the working day, working hours and working conditions overtime.

B. Regarding the overtime request process:

According to the Ministry of Labor circular, they are summarized as follows:

1. If there is a union organization, the Ministry of Labor must be notified so that they can issue a concept regarding the reasons presented by the employer upon request and simultaneously report the administrative actions carried out regarding the processing of overtime.
2. The employer and the labor inspector will make use of technological means for the process.
3. The worker inspector must take into account in the processing of overtime, the statements of reasons made by the workers for their internal analysis.
4. The analysis to be taken into account by the labor inspector in the processing of overtime: i) the employer’s request, ii) what was stated by the workers and union organizations iii) the verification of the statements and the documents presented in the request regarding supplementary work activities that do not generate exposure of the health and safety worker at work according to the exposure of physical, chemical, biological, ergonomic and psychosocial risk factors above the permissible limits that may generate damage to health and safety at work iv) working hours are in accordance with the law

C. Regarding the decision to authorize or deny overtime:

According to the Ministry of Labor circular, they are summarized as follows:

1. If the conditions of the supplementary work and obligations of the employer are not met, the authorization will be denied, it does not prevent you from submitting the application again.
2. If overtime is authorized, the administrative act will indicate the number of overtime hours that can be worked.
3. If overtime is authorized, the administrative act requires the employer to comply with article 2.2.1.2.1.2 of Decree 1072 of 2015 with the daily record of overtime with the worker’s data, age, sex, activity carried out, number of hours. worked, type of day or night shift, corresponding settlement delivered to the worker, the inclusion of overtime hours authorized by the positions in the internal work regulations
4. Once the authorization is granted or denied, a copy of the administrative act of the Mintrabajo must be posted in all work centers.
5. Once the authorization is granted or denied, the employer or union organization may present legal remedies.

D. Regarding inspection, surveillance and control actions overtime:

According to the Ministry of Labor circular, they are summarized as follows:

1. The labor inspector will be in charge of verifying compliance with the overtime authorization and that this is remunerated in accordance with the regulations, and in the event of non-payment, sanctions and revocation of the overtime authorization will be carried out.
2. The identification of overtime payments exceeding the legal limit, regardless of the consent between the parties, the Ministry of Labor will open an administrative sanctioning process.
3. Overtime work without overtime authorization results in administrative labor sanctions.

Source:

• Circular 069 of September 20, 2023 Mintrabajo