Since February 27 of 2023, an initial draft of the labour legal reform announced by the National Government is being shared through the mass media. This documents which has 37 pages establishes significant changes on some of the legal dispositions that are currently ongoing in regards to labour and employment Law; being important to clarify, that a formal Bill containing the final draft of the labour reform has not been issued yet, which is why it is possible that it could vary or be modified.
Hence, the main goal of this document is to highlight which are the most relevant aspects raised by the Government as part of this labour and employment reform:
1. The “Stability” chapter reflects in regards to the hiring modalities, that the Project proposes that as general rule all employment contracts shall be of indefinite duration, limiting the fixed term contracts and those tied to the duration of a specific project, only to very special and specific tasks, establishing new limits about fixed term contracts which cannot be longer than a year, warning that in the event that a non-renovation notice is not duly notified, the contract will automatically become of indefinite duration.
2. Nevertheless, the proposed adjustments in regard to stability do not end up in here, considering the fact that the Government also proposes to limit the employer’s possibility to freely manage their staff, by establishing the following measures:
- Prohibition to terminate employment contracts invoking the expiration date of the fixed term or the termination of a project, when the causes that originated the hiring are still present.
- It is established that employers can only terminate the employment contract when there is a legal cause, whether it is one of the objective terminations causes expressly stated in the Law or a fair cause of dismissal, as long as the stages of the disciplinary procedure stated on article 7 of the project (which pretends to extend this requirement to fair cause terminations) are duly complied.
- It is proposed to substantially modify the content of the current legal dispositions related to unfair dismissal, considering the fact that the project seeks to grant the employee the power to decide between being reinstalled to the job position with the consequences it brings, or to receive the legal severance compensation stated in the law, contracts or collective agreement, highlighting that the Government is proposing to modify the current amount of the severance in case of unfair dismissals of employees with indefinite duration contracts, which would significantly increase in comparison to the current amounts.
- In order to terminate the employment contracts of employees that article 4 of the project labels as entitled to special job stability (due to health, maternity, paternity, about to comply with old age requirements, or mothers/fathers who are the head of the household and main provider) it is necessary to request for preliminary authorization granted by a Judge.
- It is proposed to eliminate item number 6 of letter “A” of article 62 of Colombian Labour Statute in regards to the possibility to terminate contracts with a fair cause, in those events in which the employee commits “a serious misconduct that has been labelled as such(…)” on employment contracts, handbooks, and even on collective bargaining agreements or arbitration awards, which would generate a significant limitation to employers at the moment of applying fair causes, considering the fact that this cause is one of the most invoked at the moment of proceeding with fair cause dismissals derived from serious misconducts.
3. In regard to outsourcing (Chapter named “Subhiring”) the proposed wording establishes changes to article 34 of Colombian Labour Statute regarding the joint liability of the beneficiary derived from labour obligations, eliminating for big and medium companies the exception that is currently included in the current Law related to not being applicable in case the outsourced activities are not part of the business core, and also proposing that the employees of the outsourcing company have the same salary and benefits conditions of the direct employees of the beneficiary company.
4. In the same way, the Government proposes to limit the hiring of staff for the development of activities of the core business or main activity of the company through independent services agreements. Also, article 15 of the project proposes to modify article 77 of Law 50 of 1990 reducing the timeframe to hire employees through temporary job agencies, which will be only valid for a maximum time of 6 months, that cannot be extended for 6 more months (which is allowed nowadays under the current Law).
5. Also, the proposed wording on the chapter named “Correction of regressive legislation” proposes to change some articles of the Colombian Labour Statute and Law 789 of 2002. The proposed changes that raised more attention are the following:
- In regard to the apprenticeship contract, it is proposed to substantially modify its nature and have it as a special type of employment contract, which would be regulated by the dispositions of the Labour Statute.
- It is proposed to modify the start and the ending of the daytime schedule which would be from 6:00a.m to 6:00p.m., and also the nighttime schedule which would be from 6:00 p.m. to 6:00 a.m., which would generate an increase on the costs related to remuneration of nighttime work.
- Regarding the regular work schedule the project includes dispositions in regard to family schedules and training and recreation time, that had been eliminated by Law 2101 of 2021, which makes us conclude that they would still be applicable despite of the reduction of the regular schedule. Also, we highlight that there are contradictory dispositions that require adjustments on the formal draft of the reform, given the fact that on some paragraphs it is stated that the work schedule will be of 42 hours (in accordance with Law 2101 of 2021) but in others it is listed that the schedule will be equivalent to 40 hours which may generate that in case of discussion, it is decided that due to favorability, the applicable schedule will be of 40 hours, which is contrary to the dispositions established on Law 2101 of 2021.
- In relation to the remuneration of work on Sundays and holidays, it is proposed to increase the amount of the charge to 100%.
6. Finally, in relation to individual employment aspects, the proposed wording adds new regulations in regard to work on digital platforms, rural working, protection measures in case of automatization or decarbonization procedures, measures to promote equality and reduce gaps, among other final dispositions, from which we highlight the following due to its relevance:
- It is proposed to have a gradual increase of the paternity leave, going from the current duration of 2 weeks to 5 weeks once the new Law is valid, increasing to 8 weeks in 2024 until achieving a final duration of 12 weeks in the year 2025.
- In regard to migrants it is established that they will have the same conditions as national employees, allowing that even foreign applicants who still have not defined their migratory situation can start an employment relationship (being necessary that once they are hired, the procedures for the regulation of the migratory status must be conducted).
- In relation to the work on digital platforms, it will be presumed that all the staff that performs activities in favor of platforms are employees, in those events in which it is demanded to comply with internal codes, there is supervision of the quality of results, there is establishment of remuneration conditions and restrictions to freedom to execute additional activities (for example, not allowing the staff to perform services in favor of third parties).
- For the hiring of domestic cleaning services, it will be mandatory to sign written employment agreements that must be deposited at the Ministry of Labour.
- It is proposed to have a mandatory salary increase for employees who earn salaries higher than the legal minimum wage, of at least the CPI (Consumer Price Index).
- The starting date to count the prescription time for labour claims (3 years) will be modified, given the fact that the Government proposed that it starts since the termination date of the employment contract and not since the time each right was enforceable.
7. On the other hand, in regard to collective labour aspects, the proposed draft establishes a whole chapter destined to regulate the relationships between companies and unionized employees. This proposal starts with the inclusion of some guarantees in favor of promoting the exercise of the union association rights and ends with the prohibition of conducts that are labelled as “anti-unions”. Among the submitted proposal, we highlight the following:
- The obligation to grant permits not only to the union representants and directives, but also its affiliates, for the compliance of functions related to the union activity.
- Direct access to the information of companies, such as financial statements, lists of unionized and non-unionized employees, list of employees with health limitations, among others.
- Participation of unions on internal procedures of training of new employees and retraining of current employees.
Also, the draft proposes new regulations in regard to collective bargaining procedures, stating that the negotiations can be held through levels of economic activity or industry, company groups, guilds, companies or any other higher level that the parties agree. Moreover, it is proposed to include that the agreements reached on collective bargaining processes on the industry of economic activity level will be mandatory to all the business units of that industry, unless there are specific chapters that only apply to certain or determined companies.
Additionally, with reference to these new dispositions, the draft pretends to modify article 481 of Colombian Labour Statute in order to forbid the signing of collective agreements with non-unionized employees (pactos colectivos).
Therefore, this initial draft generates questions and doubts related to restrictions to legal faculties provided to employers that would have a significant impact in the development of employment individual and collective relationships, being alarming that the majority of the suggested articles, do not generate a scheme that considers the differences between large, medium and small companies, which may generate an effect that would be contrary to the Government goals in relation to guaranteeing stability and job formalization.
Hence, it is necessary that the proposed draft of the labour reform is carefully reviewed by its main actors, in order to guarantee both the benefit of the workforce and the company`s growth that will allow to achieve the principles stated on article 53 of the Constitution and the ILO conventions.
The dynamism of the employment relationships and its fairness and equality, requires that in all cases, it is necessary to apply objective and distinct criteria that protect job stability and the fair business development, which is why it is clear that regulations that only benefit certain parties of the employment relationship, will tend to promote informality and loss of current formal jobs, generating different results from the ones expected, being evident that this initial draft shows an unbalanced protectionism that would be risky.
