Through a public action of unconstitutionality filed on August 7, 2020, a declaration of inexequibility of numeral 1, article 6 of Law 1221 of 2008 was requested, which regulates the working day, overtime, and night work of the teleworkers in Colombia.
The demanded article is as follows:
"ARTICLE 6o. LABOR, UNION AND SOCIAL SECURITY GUARANTEES FOR TELEWORKERS.
1. To teleworkers, given the special nature of their work, the provisions on working hours, overtime and night work will not be applicable. Notwithstanding the foregoing, the Ministry of Social Protection must carry out special vigilance to ensure that teleworkers are not subjected to excessive workloads. "
The plaintiffs consider that the referred rule violates article 25 of the Political Constitution in relation to "decent work", the right to equality developed in article 13 of the Constitution, in accordance with the violations of the principles of vital minimum remuneration and mobile, proportional to the quantity and quality of work.
The Constitutional Court start the process, inviting, among others, the National Business Association of Colombia (ANDI) to intervene as amicus curiae, providing the vision of legal labor experts where, we asked the Honorable Constitutional Court to declare itself INHIBITED by default of the action, or, if it considers that a substantive decision is appropriate, declare the demanded article constitutional, considering the following arguments:
- Contextualization of the telework figure and the application and interpretation of labor and constitutional norms on this institution
Telework is a form of labor organization that consists of the performance of remunerated activities, under the use of information and communication technologies, which is formalized between the employer and the teleworker with the execution of the employment contract or other required for each specific case, without requiring the physical presence of the worker in a specific workplace.
However, when applying the concept of telework, the formalities of the employment contracts that regulate the employment relationship must be complied with, considering the conditions indicated in article 6 of Law 1221 of 2008 and article 3 of Decree 884 of 2012.
In this sense, the referred norms must be interpreted in the light of the limits recognized by Labor Law, such as respect for the dignity of the employee and for their fundamental rights. As well as for all those contemplated in the Constitution, agreements and international treaties on Human Rights, the law, contracts and collective labor agreements.
The foregoing means that the article studied must in any case be applied under the principles of labor law and its protective nature. Consequently, the parties to a labor contract, as well as the administrative and judicial labor authorities, are obliged to interpret the article in accordance with the legal provisions established in the Substantive Labor Code.
2. Non-violation of the right to equality
The charges included in the action do not make distinctions between formal equality and material equality. In this regard, it should be mentioned that the Constitutional Court itself in its caselaw has indicated that the principle of equality is objective and not formal; it is predicated on the identity of equals and the difference between unequal’s
It is pertinent to point out that when the special rules of Telework were defined and established and due to the particularity that this form of labor organization implies, the legislator granted the possibility that between the employer and the teleworker the form and conditions in which the contracted work will be carried out, within the corresponding regulatory framework.
In judgment C-337 of 2011, the Constitutional Court considered the following aspects in relation to the equality:
“Article 6, numeral 6 expressly states that equal treatment must be especially reflected in the right to: (…), to protection from discrimination in employment; to a fair remuneration, (…) and to the recognition of overtime when required by the employer. "
It is clear then that the legislator did not design a distinctive labor regulation of the rights of employees who perform their functions through Teleworking, but on the contrary, it established an equality that guaranteed the rights of teleworkers within special circumstances of its way of performing the service.
3. Guarantee of the inalienable rights of workers and voluntariness in the relationship of Telework
The purpose of Law 1221 of 2008 is to establish a series of norms to promote and regulate Telework "as an instrument for generating employment and self-employment through the use of information technologies and telecommunications." The sole definition of the "object" of these regulations is accompanied by article 25 of the Political Constitution.
Telework is a work modality in accordance with the new information technologies, which is characterized by the “self-control of working time” by the teleworker, in the agreements stipulated for this purpose with their employer.
It must be considered that the regulations of Teleworking were born as an initiative for the generation of employment, due to the facilities it provides. In the same way, it seeks to create tools to promote and stimulate this type of hiring, guaranteeing at all times the fulfillment of the minimum and inalienable rights of the employees since the aim is precisely to give a human component to this modality of remote work.
Law 1221 of 2008 establishes that the people hired in the Teleworking modality enjoy the same rights as those employees who perform their functions at the employer's main offices. And what is regulated is the voluntary nature between employees and employers to agree on the way to develop the labor relationship, by means of which agreements are established in the modalities of time, way and place of its execution, and thus, achieve a balance between the needs from both. In this regard, the Constitutional Court in judgment T-254 of 2016 stated:
“For the rest, the relationship as a teleworker must be voluntary for both the employer and the employee, (…), but at least the following must be specified: (i)“ the conditions of service, the technological and environmental means required and the way of executing it under conditions of time and, if possible, of space ”; (ii) the hours and days in which the teleworker will carry out their duties, in order to (…) avoid a disproportionate burden of activities under their responsibility; (iii) in relation to the work items, it is required to specify the responsibilities for their care and to set the delivery procedures (…), (iv) the computer security measures must be provided."
4. The demanded article already regulates the payment of overtime within the Telework
The problem with the indicated action of unconstitutionality is that it fractionates the norm that it intends to be declared unenforceable. That is, it does not consider the full text of the article 6 of the Law.
It is not admissible that in the charges exposed in the action, it is indicated that “there are no limits” since in the paragraph of the article 6 the payment of overtime was clearly regulated:
"PARAGRAPH. When telework is performed where the working day is verifiable, and the teleworker at the request of the employer stays on the working day longer than what is provided in article 161 of the Substantive Code of Labor and Social Security, or assigns more work than Normally, overtime, Sunday and holiday pay will be given the same treatment as any other employee ”.
It is evident that the plaintiffs did not considered the aforementioned paragraph, as it expressly clarifies that in cases where the Teleworker is assigned a higher load than what is considered normal at the time of performing their functions, recognition and payment is possible of overtime, thus avoiding that it is exposed to hours and excessive workloads without taking into account the limits established in the norm.
As a conclusion to the above, we consider that article 6 of Law 1221 of 2008, does not ignore the rights of teleworkers in any way, but rather seeks to respond to the needs of this form of labor organization, in accordance with the principles and labor regulations within the Colombian labor law.
It is important to highlight that with the new circumstances surrounding the field of remote work, it is essential to contextualize the special nature of telework in the face of the traditional conditions that regulated and defined the way in which the workforce was executed and its particularities and especially in person.
At CMS Rodríguez-Azuero we will await the publication of the Constitutionality Judgment within the context described, as well as the measures taken by the National Government in relation to new regulations that result in Telework, to share with you the progress in these matters.