Author: Laura Valderrama
Regarding the recent filing of the Government of the labor reform project on August 23, 2023 before the House of Representatives that aims to modify the Substantive Labor Code, Law 50 of 1990, Law 789 of 2002 and other labor regulations regarding individual labor relations, job stability, labor income remuneration to the worker, labor formalization, apprenticeship contract, measures of violence and non-discrimination in the world of work, outsourcing and labor intermediation, equity measures and reduction of gender gaps , transition measures of economic and environmentally sustainable societies, trade union freedom and collective rights.
Regarding the broad content of the labor reform, we allow ourselves to relate its most key or relevant aspects in individual matters to be taken into account as follows:
PROPOSAL FOR INDIVIDUAL EMPLOYMENT RELATIONS:
| General Contracting Rule | Linked by employment contract toindefinite term |
| Exceptionality to the General Contracting rule | By contracting a specific term: Work or work contract or occasional, accidental or transitory work.
Fixed term contract:More than one (1) month and up to three (3) years formeet temporary needs of the company. Contract for work or work:For the time that the specific work or work lasts, a written work contract and in which the contracted work must be indicated in detail. |
| Proposals for non-application of notice by the worker | In events of unilateral termination for reasons attributable to the employer (indirect dismissal) |
Labor disciplinary process:In this regard, it is intended to impose the burden on the employer of carrying out a disciplinary process not only for sanctions but also for dismissal with just cause, despite the jurisprudential position differentiating the dismissal not as a sanction without the imposition of the employer to carry out a process disciplinary, only the previous listening to the worker and exhaustion of a procedure only if it is contemplated in the Internal Work Regulations.
| Procedure to apply sanctions or dismissal with just cause: | It replicates the constitutionality sentence of the Court C-593 of 2014 regarding the guarantees of due labor process
– Formal communication of the process – formulation of charges – Transfer of evidence and its terms – The final and reasoned pronouncement of the employer – The imposition of a sanction proportional to the facts – Review of the decision – second instance Process that may be followed as ratified by the regulations of co-workers or union representatives-Right of representation in the technical defense through a lawyer. (New) Term of procedure: (New)It must be carried out in a term of not less than five (5) business days up to a term of thirty (30) business days, except if it is regulated in the Collective Agreement, arbitration award and internal work regulations. Penalty for non-compliance with the procedure:Consequence to the employer ofTHE DISMISSAL OR THE SANCTION IMPOSED IS INEFFECTIVE.
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| Future effects of the proposal as a whole | – Limitation of the right to unilateral termination of the contract with just cause subject to due process with technical defense by a lawyer for the investigated worker.
– Limitation to the employer in making decisions to terminate serious immediate acts that require immediate termination with just cause. – Limitations to large companies of imposition of disciplinary processes of not less than five (5) days in the recorded events of immediate serious acts of termination and the limitation of (30) days of decision in serious cases of work accidents attributable to the worker and that warrant a registration and closure of the ARL and simultaneous investigation of the work accident or in other events that warrant due diligence by the employer for decision-making, as provided by jurisprudence for the freedom of terms for the employer in terms of the disciplinary process. – The non-proportionate sanction of ineffectiveness for failing to comply with the employer’s procedure far from the particularities of each case.
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Severance pay for dismissal without just cause:The proposal only intends to modify the work or work contract and the indefinite term contract of article 64 CST as follows:
| Indemnity contract of work or work | ü Increase compensation of not less than fifteen (15) days currently toforty-five (45) daysof salary. |
| Indefinite contract indemnities | Job seniority no more than one year:
ü Payment of compensation forthirty five (35)days of salary Job seniority of more than one (1) year of continuous service and less than five (5) ü Payment of fifteen (15) additional days to the salary over the thirty-five (35) days of the first year, for each subsequent year of service and proportionally fraction. Job seniority of ten (10) or more of continuous service ü I pay an additional sixty (60) days of salary over the thirty-five (35) days of the first year, for each subsequent year of service and a proportional fraction thereof. |
Moratorium sanction of wages and benefits of article 64 CST:The proposal intends to eliminate from the current labor regulations the term after twenty four (24) months the different imposition of default interest of Superfinanciera and removes the limit in this same term the burden of ordinary demand on the part of the worker.
Ineffectiveness of discriminatory dismissal (New) added to article 66 CST:In addition to the reasons for unilateral termination of the employment contract, it is intended to be regulated when the worker alleges the dismissal was discriminatory, the burden of proof is imposed on the employer by the existence of objective reasons, under penalty of being declared ineffective and the right to reinstatement without solution of continuity or compensation equivalent to dismissal without just cause at the choice of the worker.
Day and Night Work:
| Day and night work.Proposal to modify article 160 of the CST | Day Work:period between six hours6:00 am)tonineteen hours (7:00pm)
Night Work: period comprised ofnineteen hours (7:00pm)at six o’clock (6:00 a.m.) the following day. |
Legal maximum working day:
| Day and night work.Replicates Law 2101 of 2021 on the gradual reduction of the working day to (42) hours per week | Add:
v The obligation of the employer to guarantee the semi-annual day of the family before the box or recognize individually, a provision that is currently exempted in the force of law 2101 of 2021 when the 42 hours are reduced. v Proposes to maintain the validity of recreational, cultural and sports activities for companies with more than (50) workers |
Overtime or supplementary work:
| Employer overtime ratio:Proposal for partial modification of Numeral 2 Article 162 of the CST | Add:
v The obligation of the employer in addition to the supplementary work record, the obligation to provide said record to the judicial or administrative authority, failing to do so, a reasonable estimate will be made by the worker of overtime worked, without prejudice to sanctions. Previous counterproductive proposal and contrary to the burden of proof that the worker has in the performance of the worker in the supplementary work. |
| Remuneration of Supplementary Work:Intends to modify article 179 of the CST | Proposal:
v Remuneration of the surcharge of one hundred (100%) over the ordinary salary in proportion to the hours worked, without prejudice to the salary that must be received for having worked the full week. Proposal for the gradual application of the applicable Sunday surcharge within the following three (3) years: v July 2024, the surcharge for labor on holidays is increased 80% v July 2025, the surcharge for labor on holidays is increased 90% v July 2026, the surcharge for labor on holidays is increased 100% |
Licenses:
| Licenses:Proposal to modify Numeral 6 of article 57CST | In addition to what is already provided for in this matter:
v Assistance to scheduled medical appointments or emergency medical appointments including disabling menstrual cycles, dysmenorrhea or abdominal tension symptoms associated with diagnosed endometriosis. v Attend school obligations as guardians of sons, daughters or minor members of the family nucleus. v Assistance in matters related to judicial or administrative, legal medical or other situations of gender-based violence of which they are victims. |
Gap Reduction Measures
Flexible working day for workers with family care responsibilities
| Flexible working day for workers with family care responsibilities
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Proposal for addition or regulation in labor legislation:
v Flexible working hours with work modalities supported by information technologies for workers who have responsibilities for caring for the elderly, minor children, people with disabilities, catastrophic, chronic, serious and terminal illnesses. v Possibility of the worker to propose an agreement for the distribution of the flexible working day or the modality of work with the proportion of work and rest time and accreditation of the responsibility of care in charge. v Valuation of the company in the maximum term |
Paternity leave
| paternity leaveModification proposal of article 236 CST
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Proposal for addition or regulation in labor legislation:
Proposal to increase paternity leave progressively until it reaches twelve (12) weeks in 2026 as follows:
2024increase at eight (8) weeks 2025increases to ten (10) weeks 2026increase to twelve (12) weeks
The same paternity rules are maintained by birth or adoption of sons and daughters
The paternity leave will be proportional to the time of contribution during the gestation period and in cases of adoption for a period of less than nine (9) months |
| Maternity and paternity leave for same-sex adoptive couples
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Proposes adding a new article to the CST:
v The same-sex adoptive couple will define one (1) time only, who of them will enjoy paternity leave and who will enjoy maternity leave under the same conditions provided for adopting hetero-parental couples
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Special obligations of the employer
| Special obligations of the employer
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Proposes addition or extension to article 57 Substantive Labor Code
v Adjustments to guarantee and exercise the rights of people with disabilities under equal conditions and removal of attitudinal, communicative and physical barriers according to Law 1618 of 2013, include reasonable adjustments that each worker requires in the workplace for access, development and permanence in his work. v Implement the actions of the public employment service unit within a period of one (1) year to eliminate any access or permanence barrier and encourage any type of discrimination, especially young people, women, migrants, victims of the conflict, LGTBI people, ethnic communities and other vulnerable groups v Comply with orders to stay away from the workplace issued by the authorities for victims of gender-based violence and against the alleged perpetrator v Address the preferential right to relocation of women workers who are victims of partner violence, intrafamily and proven femicide. v Companies must hire or keep employed people with disabilities
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Source:
- Project 166 of 2023C House of Representatives
