Overtime application and scope in the gradual reduction of the maximum legal working day

Author: Laura Valderrama

Working hours and weekly gradual reduction

The definition of the working day in Colombia, we can identify as the time that the worker is at the employer’s service and that the autonomy of wills prevails between the parties of the employment relationship agree by mutual agreement and in the absence of an agreement, the application of the legal maximum working day.

In this regard, our labor legislation regulates a maximum working day, currently eight (8) hours a day, and forty-eight (48) hours a week, subject to a gradual reduction in the coming years to forty-two (42) hours a week with the regulatory modification of law 2101 of 2021 as follows:

Supplementary or Overtime Work

According to article 159 of the Substantive Labor Code, supplementary or overtime work is defined as «That which exceeds the ordinary working day and in any case that which exceeds the legal maximum working day, taking into account the application of the gradual reduction, and can be configured as follows :

• Daytime extra work:Extra daytime work is currently remunerated with a surcharge of twenty five percent (25)% of the value of daytime work and this is subject to application in daytime work between six hours (6:00) and twenty-one hours ( 21:00) hours according to article 168 of the Substantive Labor Code, Law 1846 of 2017.
• Extra night work:Extra night work is paid with a surcharge of seventy-five percent (75%) on the value of the ordinary worker, according to article 168 of the Substantive Labor Code, the surcharges are exclusive, that is, they are independent and are not cumulative with other types of surcharges. It is applied in the time included in night work from twenty-one hours (9:00 p.m.) and six (6:00 a.m.).

Sunday and Holiday Work

Article 179 of the Substantive Labor Code expresses the remuneration for Sunday and holiday work in the following terms:

• Sunday and holiday work is paid with a surcharge of seventy-five (75%) over the ordinary salary in proportion to the hours worked.
• If another day of rest coincides with Sunday, you will only be entitled to the surcharge indicating above (75%)
• Excepted from the thirty-six (36) hour shift

The Worker may agree with the employer his mandatory rest day on Saturday or Sunday, which will be recognized with all its aspects as institutionalized mandatory Sunday rest.

It is understood that Sunday work is occasional when the worker works up to two Sundays during the calendar month. Sunday work is understood to be customary when the worker works more than three or more Sundays during the calendar month

• Overtime on holidays or Sundays.For working on Sunday or on a holiday after the first eight (8) hours, overtime pay is generated and is remunerated as follows: extra daytime work is remunerated with 25% of the value of the Sunday salary and with 75% on the value of the Sunday salary, extra night work with 75% on the value of the Sunday salary and with 75% of the value of the Sunday salary.

Formulas for the liquidation of overtime labor news and supplementary work:

Prior authorization procedure for overtime and/or supplementary work Ministry of labor

Within the framework of current labor regulations and respect for the principle of human dignity of article 53 of the Political Constitution and in accordance with the provisions of article 1 of Decree 995 of 1968 integrated by the Regulatory Decree of the Labor Sector 1072 of 2015, It provides for the prohibition of agreeing within the employment relationship on exceptions to the working day, unless the company has the special authorization of the Labor Administrative Authority Ministry of Labor.

In response to the overtime permit procedure requested from the Ministry of Labor, its competence to review and approve hours is linked to the labor and social security inspector who is in charge of verifying compliance with legal parameters, supplementary work authorization will be issued for overtime work, day or night, which cannot exceed two (2) hours per day and twelve (12) hours per week, when the working day is extended to ten (10) hours per day, it will not be possible to work overtime on the same day . (Art. 22 Law 50 of 1990).

Special obligations of the employer in Overtime or supplementary work:

In this regard, we can highlight the following obligations to take into account:

• Comply with the limits set in the resolution of overtime of two (2) hours per day in addition to the maximum legal working day, taking into account the gradual reduction of Law 2101 of 2021, not to exceed twelve (12) hours per week, when the daily work is extended by agreement between the parties to ten (10) hours, overtime may not be allowed on the same business day.
• Keep a daily record of supplementary work per worker specifying name, age, sex, activity, number of hours worked according to day or night work, Sunday or holiday and the settlement corresponding to labor regulations.
• Comply with the validity of two (2) years authorization for overtime worker.
• Previously request the Ministry of Labor in the Territorial Directorate of the Ministry of Labor of the company’s main domicile, prior to the expiration of the overtime work authorization depending on the needs of the company and charges that would apply and analysis of the impact of overtime on the Health and Safety at Work.
• When the request for supplementary overtime work is made, the company must post the request for overtime in all places or work establishments until it is decided by the Ministry of Labor.
• Notify the union organization(s) of the request for overtime and all administrative actions.
• Granted or denied overtime authorization, the company must publish in workplaces
• Include the resolution of overtime in the internal work regulations in the respective chapter on overtime and work hours.
• Consortiums and temporary unions must advance authorization for overtime when they have directly hired the staff.

Exclusions from the maximum legal working day:

Article 162 of the CST provides:

• The charges of direction, trust and management
• Internal domestic workers with a working day limit of ten (10) hours a day.
• Intermittent discontinuous work and those of simple surveillance when they reside in the workplace
• Authorizations from the Ministry of Labor for charges authorized for overtime
• Work cooperatives and pre-cooperatives are not issued authorization
• Private security and surveillance personnel, applicable to Law 1920 of 2018, which allows 8 hours a day and four extra hours a day for a total of twelve (12) previously agreed hours.

In accordance with the above, we observe all the regulatory aspects to be taken into account in the prior practical application and in the execution by the company and the workers regarding supplementary work and its progressive integration as provided by Law 2101 of 2021 of gradual reduction and its application for resolution of overtime.

At OCH GROUP, we are expert allies in advising and consulting companies to take into account in labor matters of scope and application of overtime.

Sources:

• Articles 159 and 162 of the Substantive Labor Code
• Article 2.2.1.2.1.1
• Decree 1072 of 2015, Law 2101 of 2021