Contributed By Godoy Córdoba member of Littler
In terms of labour rights, the Colombian Labour Code establishes that any distinction between blue- and white-collar workers is discriminatory. However, some distinctions are made; these are based on either salary or the duties of the employee, eg:
There are three types of employment contracts: (i) fixed-term; (ii) indefinite term; and (iii) duration of work or task:
Employment contracts need not be in writing, although this is common practice and recommended from a legal perspective. Thus, it is possible to agree an employment contract orally, in which case the parties must agree on the following: (i) the nature of the work; (ii) the place where the work will be performed; and (iii) the salary or remuneration.
In a written employment contract, all parties must sign the contract and the document must contain at least: (i) the identification and domicile of the parties; (ii) the place and date of the signing; (iii) the place where the worker was hired and where he or she will provide the service; (iv) the nature of the work; (v) remuneration; (vi) payment terms and payment periods; and (vii) an estimate of payment in kind, if applicable.
Also, there are some provisions that must also be set in writing:
The maximum full-time work hours are 8 hours per day, 48 hours per week, distributed over 5 or 6 days (ie Monday to Friday or Monday to Saturday).
Overtime work is any work in excess of regular work hours. Overtime is limited to 2 hours per day and 12 hours per week. Employers must first receive authorisation from the Ministry of Labour for their employees to work overtime.
Overtime work must be remunerated with a special surcharge, ie:
Regular night work is subject to a surcharge of 35% over the value of ordinary work.
However, Colombian labour laws also allow the parties (the employer and employee) to agree on special flexible shifts according to business needs, eg:
An employee who works full time cannot earn less than the minimum legal monthly salary, which is updated annually by the government (https://www.salariominimocolombia.net/). Part-time workers are paid pro rata.
Although there is no law that obliges employers to increase the salary of employees who earn a salary above the minimum wage, the Colombian Constitutional Court has ruled that an annual adjustment to salaries above the minimum wage should be made, based on the CIP (Consumer Index Price) of the corresponding year.
The law establishes two types of salaries: ordinary and full salary.
Employees are entitled to 15 paid holidays per year, of which each worker must take at least six days – vacation days not taken are rolled over. Nevertheless, after a period of three years following the accrual of such holidays, legal action may be taken to demand that the accrued days be taken.
During the year following the accrual of the vacation days, the employer must inform the employee of the date when he or she shall take his or her holidays, notice of which must be provided at least 15 days prior to the date when the worker has been scheduled to take these days off.
It is possible to set collective vacations for all workers and it is very common for the workers to request, and the employer approve, the date on which the workers will take them.
A maximum of seven vacation days may be cashed out. However, to cash them out the worker must also determine the dates for his or her vacation.
At the end of the employment contract, any unused vacation days must be paid to the worker in cash – based on the salary that the worker was earning at the end of the contract.
Medical leave is paid by the social security system, except for the first two days of leave, which must be paid by the employer at a percentage equal to 66.67% of the monthly salary. When medical leave is the result of a work-related issue or a professional accident or illness, it must be paid by the Labour Risks Administrator (“Administradora de Riesgos Labourales” or ARL) at a rate of 100% of the employee's monthly salary. If not, it will be covered by the Health Promotion Entities (EPS).
Both maternity and paternity leave are paid at a rate of 100% of the worker’s salary, such leave being paid by the social security system. The maternity leave period is 18 weeks for one child and 20 weeks in case of multiple births. The father is also entitled to paternity leave equal to 8 working days. In both cases, the benefit is extended to the adoptive parents of children under the age of 7. Additionally, the mother will also have the right to paid leave in the case of a legally authorised abortion.
If the employment contract is interrupted due to causes attributable to the employer, the employer must continue to pay the worker’s salary. Such interruptions may include the absence of raw materials and the loss of work permits and licences etc. This obligation also continues even when the workers go on strike due to a serious breach of the employer’s obligations.
Employees must be paid leave of absence in the following circumstances:
Furthermore, the law establishes those circumstances that may lead to the suspension of a contract, such as an agreed leave (paid or not) between both parties, a disciplinary sanction, military duty etc.
It is important to bear in mind that local laws grant labour stability to those employees that have a special condition, eg: pregnancy, disability or a health condition and those who are close to meeting their retirement age. This protection prohibits the employer from unilaterally terminating an employment contract without receiving prior authorisation from the Labour Ministry.
According to Article 44 of the Labour Code, non-competition agreements are ineffective and non-binding as they are considered to be restrictions on the right to work (Article 25 of the Political Constitution), which is a fundamental constitutional right. In addition, an agreed non-competition clause can also be considered as an act of bad faith by the company.
However, in some cases, companies enter into commercial agreements involving restrictive covenants with their employees which are separate to the employment contract and are called “Acuerdo de no hacer” (promised non-action). The parties agree that an employee or former employee of the company will not work for the competition during a fixed period and, in consideration thereof, the company shall pay to the employee a previously agreed fixed sum.
In the event that the employee or former employee breaches the agreement, the parties may have also agreed that the employee pay an indemnity to the company as an alternative to criminal proceedings.
It is possible to enter commercial agreements that include non-solicitation clauses. However, in order not to restrict that person's right to work the hiring party may pay a sum of money to the former employer.
Law 1581 of 2012 and Regulatory Decree 1377 of 2013 set forth rigorous protection of personal information. This protection extends to employee information contained in the employer’s databases and files. By virtue of the provisions of these regulations, which protect the constitutional right to privacy, the employer cannot share the said information with third parties without the employee’s prior express and written authorisation.
In cases where information must be shared in order to comply with obligations under the employment relationship, for example when workers share information for the purpose of payment of wages, employers may share that information with corresponding entities. There are, however, circumstances where the employee’s consent is not required (Article 10), eg sharing information with the social security institutions for the purpose of enrolling the employee.
Information which is particularly sensitive, such as the employee’s medical records, can only be handled by the company’s medical personnel and must be stored securely and separate to the employee’s file.
Employees and former employees may request that their personal information be deleted from the employer’s files, except for any information that must be retained as evidence of compliance with the employer’s obligations.
The Colombian government eliminated foreign workers’ quotas in 2010; companies can now hire an unlimited number of foreigners to work in the country, except in the oil and gas industry where there are some restrictions depending on the place where the foreigner will be rendering his or her services. However, in order to be able to work in Colombia, the foreigner must have a legal immigration status, ie a visa.
Resolution 6045 of 2017, which became effective on 15 December 2017, overhauled the immigration system. The new law completely restructured the visa system, replacing the former categories (ie Negocios (NE), Temporal (TP), and Residente (RE)) with new categories (ie Visitor (V), Migrant (M) and Resident (R)). The main rules are as follows:
Note: M visa holders cannot remain outside of Colombia for more than six continuous months, otherwise, their visa will be automatically terminated.
Changes from the Original Application
Foreign nationals who are authorised to work under certain subcategories of Visitor and Migrant visas, such as the V-13 and M-5 categories, can only engage in the activities as listed on their original visa application and may only work for the sponsoring company listed on their original visa application. If there are any changes to the information contained in the original application, the foreign national has 30 business days in which to secure a new visa. If he or she does not secure a new visa during this time, he or she must leave Colombia and will not be able to legally work in Colombia until they have secured a new visa with their updated information. Failure to secure a new visa or to depart the country within the permitted 30-day period will result in penalties and may lead to a regularisation process.
Colombian immigration law requires all companies sponsoring foreign nationals to report the start and end date of their assignments to “SIRE” (Migración Colombia Platform) no later than 15 calendar days from when the foreign national began work.
The Ministry of Labour, through Resolution 4386 of 2018, created and implemented a single registry of foreign workers in Colombia (RUTEC) as a platform to quantify, identify and diagnose labour migration and the compliance of local employers with regard to local labour obligations. Under this new platform, the following obligations must be met by the employer:
Therefore, companies that hire foreigners shall register all foreign employees who hold a valid visa that allows them to work legally.
Unions have special protections, as provided by the Labour Code, the Constitution, various constitutional decisions and ILO conventions. Because there can be various unions of a similar type within a company, an employee can belong to a number of unions. There are four types of unions: company unions, industrial unions, guild unions and multiple activity unions, all of whom can participate in collective bargaining. This is especially so in the public sector.
However, the number of employees belonging to unions has not increased by the same proportion – according to the Labour Ministry, by 2017 there were 1,028,764 employees affiliated to 5,523 unions.
The members of the board of directors, up to ten members, have special stability and they wield power in the most crucial decisions, such as a vote for strike action (when the union has more than 50% of the total employees in the company).
According to the Labour Code, the role of unions is to protect their members in respect of salaries, positions, shifts, safety and environment issues etc and to represent employees as against their employer and provide training and advice regarding their rights as employees.
Whereas employees are commonly represented by unions, there are other bodies that represent the employees, such as the health and safety at work committee which is involved with accident prevention and illness in the workplace.
Collective bargaining has become critical since, as mentioned before, there can be multiple unions in a company and each of them represents their own unionised employees. Fortunately, the Supreme Court has confirmed that an employee can only be part of one collective agreement, even if he or she belongs to more than one union and there is more than one collective agreement.
The terms in a collective bargaining agreement are strictly defined by law. The first act of the union consists of approving petitions to be presented to the employer, which must be presented within 60 days following approval. Once the petitions have been presented by the union, the parties must begin negotiations within the following five days. In the event that the employer refuses to begin the collective bargaining process, the Labour Ministry can impose fines equal to five to ten times the minimum wage per day.
The collective bargaining agreement shall come into force within 20 days of reaching an agreement. In the event that the parties do not reach an agreement, they can terminate the collective bargaining process or agree to extend the negotiating period by up to 20 additional days.
In the event that no agreement has been reached and the collective bargaining period has ended, there are two possible choices: strike or arbitration. In companies where an essential public service is not threatened, a strike can only be promoted by the general assembly if the unions have a majority in the company or represent half of the employees concerned. A strike can last for a maximum period of 60 days, after which there shall be mandatory arbitration.
An employment contract may be terminated in the following circumstances: (i) for just cause; (ii) unilateral termination without just cause; (iii) mutual agreement; or (iv) resignation by the employee, ie:
Notice of dismissal applies to the termination of fixed-term employment contracts that require prior notification of at least 30 days. If notification is not given, the employment contract is automatically extended.
Just cause pursuant to Article 62 of the Labour Code (see the list provided in 6.3 Dismissal for (Serious) Cause (Summary Dismissal)) provides that an employer who wishes to terminate an employment agreement must give the employee prior notice of no less than 15 working days, otherwise it will be considered to be a unilateral termination without just cause and an obligation to pay a severance for dismissal without just cause will become due.
In order to terminate the employment contract for just cause, a disciplinary process must be carried out prior to the termination (as explained in 6.3 Dismissal for (Serious) Cause (Summary Dismissal)).
The circumstances allowed under Article 62 of the Substantive Labour Code are as follows:
With regard to causes 9 to 15, an employer who wishes to terminate an employment agreement must give the employee prior notice of no less than 15 working days.
In order to terminate an employment contract for just cause, a disciplinary process must be carried out prior to termination. Article 108 of the Substantive Labour Code stipulates that, as a minimum, the internal work regulations must include verification of the faults or offences and stipulations regarding disciplinary sanctions and the manner in which they are to be applied.
Furthermore, the Constitutional Court, in Judgment C-593 of 2014, stated that internal work regulations must include all stages of the disciplinary process. These processes must be carried out within the scope determined by the court, which specifically provides for the following:
According to the Colombian Labour Code, a mutual agreement to terminate an employment contract does not imply that any special or additional consideration be taken into account. The company may, nevertheless, reach an agreement with the employee and pay fringe benefits and any other liabilities.
To reach an agreement with the employee, the employer must propose the termination of the contract to him or her and both parties must sign the document which contains the agreement. There is no obligation to recognise any severance or additional payment (different to the fringe benefits); however, companies usually offer a sum of money to the employee to facilitate the negotiation. There is no legal minimum or maximum limit. The company can calculate the dismissal severance to be paid as an extra-legal and non-salary bonus.
Considering that these cases usually relate to senior employees, it is suggested that once the company obtains a mutual agreement the termination be ratified before a public notary through a settlement agreement.
Terminating a contract based on any type of discrimination is prohibited, especially if it is based on pregnancy, a worker’s disability, the result of joining a union and for reasons of age, race, religion or political beliefs.
An employer is also prohibited from terminating the employment contracts of the following groups of workers:
Any employer who dismisses a worker under these circumstances shall reinstate the worker to his or her position and pay the salaries and social benefits for the period he or she was not working. For pregnant workers and those with a health condition, the employer will be penalised and ordered to pay additional compensation.
An employee may claim wrongful dismissal due to a failure to fulfil one or more of the disciplinary procedural requirements or by claiming that the fault for which the contract was terminated with just cause was not sufficient to support such a termination. As a consequence, the employer may be ordered to pay the employee the severance amount that the law has established for terminations without just cause and, if the employee is able to prove that the damage is not covered by said severance payment, an additional sum may also be ordered.
The consequence of such a claim may result in the reinstatement of the employee in cases where the employee proves that he or she has labour stability or when failure to fulfil the disciplinary procedure requirements has been proven.
All types of discrimination are prohibited. These prohibitions have been provided for by the Substantive Labour Code since 1950 and, as of 1991, such prohibitions have acquired constitutional status.
There is also a specific prohibition against discrimination based on sexual orientation, sex, age, race, religion, social status, origin, political belief, disease, having a permanent disability, contracting AIDS and for joining a union.
Any differences regarding salary or working conditions must be supported by valid objective criteria, such as productivity, experience, academic training, the place where the services are provided or seniority within the company.
In the case of a judicial claim, the burden of proof lies with the employee as the claimant; however, the employer will also be requested to prove that his or her actions were not discriminatory and there were objective criteria to support and explain why the decision was made.
There are various means for resolving disputes between employees and employers, depending on whether the dispute is individual or collective.
The National Constitution ensures the right to private settlement and transaction of workers’ rights provided that the minimum legal rights of the workers are not affected. Should the parties not come to an agreement through direct negotiation, the Ministry of Labour may facilitate a negotiated agreement. If such mediation is not sufficient to arrive at an agreement, the workers will be free to appeal to the labour courts.
If the employees choose this path, the highest forum for resolution is the Supreme Court. An ordinary labour proceeding before the lower courts is usually resolved in approximately two years while a cassation judgment takes approximately four years to be reached.
When fundamental rights are involved and irreparable damage is imminent, the worker may elect to choose guardianship action (“acción de tutela”) before any judge in the country. The judge shall, within approximately one week, issue a decision re-establishing the fundamental right that was violated. In such cases, the highest court is the Constitutional Court of Colombia. This duality has resulted in conflicts of interpretation, given that in some matters of interpretation the Supreme Court and the Constitutional Court are not in agreement.
In the settling of collective labour disputes, the first path is to resolve them through direct negotiations. After the union has filed its list of proposed demands ("pliego de peticiones"), the employer must initiate negotiations within five business days following the receipt of the list. The negotiations may last up to 20 days and may be renewed one time for an additional 20 days. If the parties do not reach an agreement during this period, the workers may vote to submit the dispute to an arbitration tribunal or go on strike. This process has constitutional status and protection.
The option to go on strike is open to majority unions that represent more than half of the company’s employees. The Ministry of Labour carries out mediation procedures during all dispute resolutions and ensures the right of association and the right to strike.
As long as the collective dispute is ongoing, the workers cannot be dismissed without just cause. If the strike lasts 60 days or more, the parties must appear before an arbitration tribunal. However, the strike may be terminated if a majority of workers opt to appear before an arbitration tribunal to resolve the dispute.
There are two types of arbitration: economic arbitration and legal arbitration.
Economic arbitration is a way to resolve union and employer disputes when the parties do not achieve an agreement during the collective bargaining process. Decisions reached are not on the interpretation of the law but on deciding the petitions equitably.
Legal arbitration seeks a solution when there is a dispute regarding the applicability or interpretation of the law. In this case, the arbitration clause is only enforceable if it is agreed upon within a collective agreement.
Expenses are the costs the losing party must pay, regardless of whether the loser is the employee or the employer. If the employer is found to be in breach, the expenses are doubled.
If a party cannot afford an attorney, an attorney will be appointed to defend their interests.