Recent regulations and employment perspectives that will be relevant in 2023

Regarding the arrival of the year 2023, it is necessary to analyze the employment dispositions that will apply during this year, focusing on its practical implementation. Also, the preventive analysis of the new Bills that are currently being in course at the Congress, is vital to define strategies and contingency plans, in order to protect employment and the business sector as well. 
 
Hence, below we highlight the most important aspects to consider:

Reduction of the Maximum Work Schedule

Through Law 2101 of 2021, article 161 of Colombian Labour Statute, which regulates the maximum work schedule was modified, adjusting the limit  of forty eight (48) weekly hours of work to forty two (42) hours per week.

Regarding the reduction of the work schedule, it is important to highlight the following aspects derived from the adjustments to article 161 of Colombian Labour Statute:

1. Article 3 of Law 2101, establishes that the reduction of the maximum work schedule will be implemented gradually, hence, employers will have to consider that since July 15 of 2023, the schedule will be reduced in one (1) hour, having a duration of forty seven (47) hours per week, stating that the gradual reduction will apply on July 15 of each year until 2026, which is the time in which the gradual reduction will be completed, having a legal work schedule of maximum forty two (42) hours per week according to the following scheme:

2. The 6x36 schedule, is not modified by Law 2101 of 2021, considering the fact that the stablished limit for this special schedule is lower than the new ordinary schedule limit equivalent to forty two (42) hours.

3. However, the special shifts schedule stated on article 165 and the flexible schedule, unlike 6x36 schedule, are indeed affected by the Law 2101 of 2021, due to the fact that both are tied to the maximum legal schedule, which means that in order to determine the distribution of the daily hours, they cannot exceed the new limit which will be of forty two hours (42) per week.

4. The distribution of the work hours in accordance to the aforementioned reduction of the work schedule, will generate that since 2026, the minimum daily work schedule cannot be lower than four (4) hours and not higher than seven (7) hours a day.

5. In regards to the family day regulated by Law 1857 of 2017, and the recreational activities stated on article 21 of Law 50 of 1990, the will only stop being mandatory once the total reduction of the work schedule to 42 hours per week is completed (this is, since July 15 of 2026).  Hence, despite the fact that since July 15 of 2023, the reduction of the work schedule is implemented partially, until the weekly work schedule is not completely and definitely reduced to forty two (42) hours per week, the obligations related to family day and recreational activities will still be an obligation, and must be granted without exception until July 15 of 2026.

6. Finally, it is relevant to mention that the reduction of the maximum work schedule, does not generate the reduction of the employee`s salaries, due to the fact that the monthly remuneration is an acquired right of the employees; nevertheless, as a consequence of the reduction in the number of hours of the legal work schedule, parallelly the amount of the overtime charges will be affected, considering that they will be calculated taking into account the amount of the ordinary work hour, which will increase in regards to the reduction in the number of work hours per week.

Last year to comply with Decree 376 of 2021 

The employers that in regards to Decree 588 of 2020, adhered to the benefit of paying pension contributions of 3% instead of the legal 16%, since June 1 of 2023, will have a twelve (12) months deadline to correct and adjust the contributions to 16%, according to Decision C-258 of 2020 of the Constitutional Court, that declared the aforementioned decree unconstitutional. 

Ministry of Labour Guidelines about Collective Agreement with not unionized employees and Benefit Plans.

In the month of December of 2022, the Ministry of Labour issued Circular 078 of 2022 in which they established internal guidelines to consider in case of investigations related to alleged threatens against the right to unionize, establishing that in case it is found that a Company that has unionized employees, has benefit plans or agreements signed with no unionized staff that have the same or better benefits that the ones stablished for unionized workers on the collective bargain agreement, it will be considered that the Company is engaging in conducts that discourage the right to unionize, which could generate risks of fines for employers who proceed with these behaviors (clarifying that even though at the moment there is not a prohibition to have collective agreements with non-unionized employees, which are legal in accordance with article 481 of Colombian Labour Statute, these guidelines will be considered by Work Inspectors in the event of investigations).

Relevant Bills related to employment.

It is significantly relevant to mention some of the Bills that are currently being discussed in the Congress:

•    Bill 106 of 2021 – Preferential employment hiring of local workforce.

The Bill proposed by members of the Liberal Party, seeks to modify the minimum percentage of qualified workforce for Companies that develop exploration, construction, assembly and exploitation of not renewable resources, in the cities or towns in which these activities are conducted, which brings as a consequence that the qualified workforce must be of at least 50% of locals born in the town or region, and that 20% of the staff whether is qualified or non-qualified workforce is integrated by women or people with health limitations.

•    Bill 021 of 2022 – Flexibility for employees with family responsibilities.

This bill is focused on adding a new article to Law 1361 of 2009 (Integral Family Protection Law), and its main goal is to provide an option for employees who have family responsibilities, to modify the number of daily work hours distributing their schedule on the remaining days of the week, understanding that the employees with these responsibilities, are those who are in charge of providing care to underage kids, people with disabilities or elders.

However, it is relevant to mention that this eventual flexibilization won’t be mandatory once an employee with responsibilities makes a request, and instead, the flexibilization will be possible as long as there is a mutual agreement between the employee and the employer. 

Also, the aforementioned Bill proposes to give preference to employees who have familiar responsibilities over other workers, at the moment of defining remote work schemes such as teleworking.

•    Bill 113 of 2022 – Changes in the nighttime schedule

The proposal that is currently being discussed in the Congress, is focused on modifying article 160 of Colombian Labour Statute, proposing that the night shift starts since 6:00pm and finishes at 6:00am. The above, will have consequences in regards to the night work charges, changing the current night schedule which starts at 09:00pm and also increasing the remuneration costs.

Also, this Bill also seeks to increase the amount of the Sunday work charges, which at the moment are equivalent to 75%, increasing to 100% of the ordinary work hour.

•    Bill 046 of 2022 – Increase in the days of vacation.

Finally, it is important to mention the Bill that seeks to increase the number of vacations days that an employee would be entitled to after a year of work, stated on article 186 of Colombian Labour Statute, changing from 15 days of vacation per each year of services, to 20 days of vacation for the same amount of service time.

Additionally, it is relevant to mention that this modification would also affect the employees who perform high risk activities, considering the dispositions stated on article 2 of Decree 2090 of 2003, due to the fact that it seeks that the proposed 20 days of vacations are caused on a period of six months.

Therefore, employers must consider the applicable dispositions and the ongoing Bills, in order to determine the repercussions that they may bring in regards to their internal operation, and hence, defining and implementing duly, promptly and strategically the correspondent adjustments.