Employment 2019 Second Edition

Last Updated August 06, 2019

Colombia

Law and Practice

Authors



Godoy Córdoba member of Littler is the only Colombian firm specialising in labour, social security and immigration law with global coverage. Its eight partners represent a combination of experience gained over four generations of practice. The firm has an interdisciplinary approach, led by its managing partner and in-house team who constantly generate technological and service solutions. Its main area of practice is labour law: understanding the client’s business and its main challenges. This is supported by seven partners, one of whom is a former magistrate of the Supreme Court of Justice. The firm has a global accounts department that caters to clients outside of Colombia in over 40 countries around the world. The firm has a series of specialised units dedicated to reaching agreements and administrating collective conflicts within companies with unionised and non-unionised personnel.

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:

  • Employees who earn less than double the minimum wage are entitled to transportation aid (a fixed amount that the government establishes on a yearly basis); the employer should provide shoes and clothing every four months which must be worn when performing their duties.
  • When an employer terminates a contract without just cause, a corresponding severance payment must be paid. The formula for calculating the amount to be paid varies depending on the salary of the employee.
  • When an employee earns an amount equal to 13 times the minimum wage or more, the employer and the employee may agree that the salary shall be considered to be a full salary and that the monthly amount paid covers not only the salary but also all legal labour benefits that an employee must receive (eg unemployment aid and semi-annual bonuses).
  • Employees who execute duties that are considered to be management, managerial or of trusted employee status are not subject to limits on their working hours; consequently, they are not eligible for overtime payments. In addition, these employees are not beneficiaries of any collective bargaining agreement the company may have entered into.

There are three types of employment contracts: (i) fixed-term; (ii) indefinite term; and (iii) duration of work or task:

  • Fixed-term contracts – Article 45 of the Colombian Labour Code states that the parties may agree a fixed-term contract with termination on a specific date. Therefore, the agreement shall remain in force up to that date, with no legal severance due if the agreement ends on the agreed date of termination. In order to terminate a fixed-term contract, either party shall give 30 days notice prior to the due date. If notice is not given within that period, the agreement will be automatically extended for a term equal to the one that was initially agreed. Both parties may terminate the agreement before the due date; however, if the employer unilaterally terminates the agreement, a severance payment equal to the salaries due until the end date of the agreement must be paid. The risks raised from the use of fixed-term agreements are the same as those from the other types of labour agreements, except for two additional situations that may occur: ie the indemnification for the termination of the agreement might be costlier than an indefinite term agreement and fixed-term agreements of less than one year automatically change into a one-year duration agreement whenever the original contract has been extended three times, ie at the fourth extension the agreement is automatically extended to one year.
  • Indefinite term contracts – Article 47 of the Labour Code establishes that a contract shall be valid for as long as the causes that gave rise to such a contract still subsist.
  • Duration of work or task – Article 45 of the Labour Code establishes that the employment relationship ends when the work or task is complete; therefore, the work or task to be performed must be clearly defined. If the work or task is not clearly defined (which does not mean that the exact date of termination is known), the contract will be considered to be an indefinite term contract.

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:

  • Fixed-term employment contracts – if such contracts are not agreed in writing, the contract will be understood to be of indefinite term.
  • An estimate of agreed payment in kind, otherwise such remuneration shall be determined by an expert.
  • Full salary agreement – it is possible to agree on a full salary inclusive of all benefits for those employees who earn at least 13 times the monthly legal salary (“salario integral”). This agreement must be made in writing.
  • Trial period – it is possible to agree on an initial trial period of up to two months during which time the parties may terminate the employment contract without paying severance for dismissal without just cause. Such agreements are only valid if made in writing.
  • The law also provides that any clauses that diminish or do not acknowledge the worker’s legal rights are considered to be invalid, given that these rights are considered as the minimum, inalienable rights that cannot be diminished or affected by the will of the parties.

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:

  • overtime work between 6am and 9pm is subject to a 25% surcharge over the daily value of ordinary work; and
  • overtime work between 9pm and 6am is subject to a 75% surcharge over the daily value of ordinary work.

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:

  • daily and weekly work hours can be extended by arranging shifts that do not exceed 144 hours over a period of 3 weeks; and
  • weekly hours can be extended up to 56 hours per week (8 hours a day from Monday to Sunday) when a task needs to be completed and no other alternative is available.

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.

  • Ordinary: the salary and contributions are paid separately. These payments include remuneration for working Sundays and holidays. Employees who receive an ordinary salary are also entitled to the payment of benefits, ie: (i) severance aid equal to a one-month's salary per year, which is paid into a severance aid fund; (ii) severance aid interest (12%), which is paid directly to the employee; and (iii) a “service bonus” equal to one month's salary payable in two instalments, the first in June and the second in December. (Note: social security benefits are not considered to be salary.)
  • Full salary: if the monthly salary of an employee is equal to 13 or more minimum monthly legal salaries (COP10,765,514, approximately USD3,600), the parties may agree in writing that this will be a full salary and the employee will not receive any other benefits, such as night work, overtime, working mandatory rest days, rest days, Sundays and holidays.

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:

  • a “calamity” or the death of a close family member (up to five working days);
  • to exercise the right to vote;
  • to participate in union activities;
  • to attend mandatory temporary public positions (such as jury duty); and
  • during national holidays. Colombia has 18 national holidays.

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:

  • Visitor (V) visas – these are intended for short-term assignments. The length of validity depends on the subcategory under which the activity may fall and the scope of engagement. The maximum validity is two years. These visas allow qualified foreign nationals to work solely for a particular event, project, profession or a company in the following types of jobs:
    1. temporary services, including technical assistance (it is unclear whether a service or work contract will be required);
    2. intracompany transfer of foreign nationals from countries with whom Colombia has a free trade agreement;
    3. events (conferences, sports and artistic events);
    4. foreign government officials or commercial representatives from a foreign government;
    5. maritime industries;
    6. internships;
    7. volunteering for projects related to human rights;
    8. audio-visual and digital production; and
    9. journalists or foreign media.
  • Migrant (M) visa – this visa is available to foreign nationals who wish to work in Colombia or remain for an extended period. Depending on the subcategory, this visa may be valid for up to three years. Some examples include:
    1. spouses of Colombian nationals;
    2. Mercosur nationals (per reciprocity: nationals of Argentina, Brazil, Bolivia, Peru and Ecuador, but excluding nationals of Chile and Venezuela due to the suspension of Mercosur rights for these countries);
    3. employees under work or services contracts (M-5 visa, discussed in more detail below);
    4. partners or owners of a company in Colombia; and
    5. foreign nationals who make a foreign direct investment for the purchase of property in a sum equal to or above 350 times the minimum monthly salary. (This currently amounts to approximately USD87,000.).

Note: M visa holders cannot remain outside of Colombia for more than six continuous months, otherwise, their visa will be automatically terminated.

  • Resident (R) visa – this is a long-term visa, ie for a stay of up to five years, but resident visa holders cannot remain outside of Colombia for more than two continuous years. If he or she does so, his or her visa will be automatically cancelled. All subcategories under this visa are granted open work permits, which means that foreign nationals may work in any industry in Colombia. Examples of those who would qualify under this visa include:
    1. those who have been in Colombia for two to five continuous years, depending on the visa subcategory;
    2. individuals who have renounced their Colombian nationality;
    3. parents of a Colombian national by birth; and
    4. foreign investors with direct foreign investment equivalent to 650 times the minimum monthly salary. (This currently amounts to approximately USD160,000.)

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:

  • the company must register with RUTEC;
  • foreign workers must be enrolled in RUTEC within 120 calendar days of the actual hiring;
  • migrants who have already been hired by the company must be enrolled in the RUTEC within 120 days from October 9th of the current year; and
  • any and all changes regarding the foreign employee, change in job position, salary or residency information must be completed within a 30-day period.

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:

  • Unilateral termination with just cause by the employer – the just causes for the termination of an employment contract were established by Article 62 of the Colombian Labour Law. The employer can only terminate an employment contract with just cause if the employee displays any of the conducts or actions established by law. An action that provokes the just cause rule must be proven through a disciplinary process in which the employer must be shown all the evidence and the employee will have the opportunity to defend himself or herself, explain the facts and show additional evidence that counters what has been shown by the employer; alternatively, he or she may accept responsibility.
  • Unilateral termination without just cause – termination without just cause applies when the employer wishes to terminate the contract but the employee has not committed any of the actions or conducts as required by Article 62. This option will only be valid if the employee does not enjoy special protection (fuero legal) per the law, such as a medical condition or being subject to workplace harassment.
  • Mutual agreement – subject to Article 61 of the Colombian Labour Law it is possible to terminate a contract by mutual agreement without the payment of severance. However, it is recommended that a transactional amount be paid in order to settle any discrepancies that may arise after the termination of the employment contract.
  • Resignation – an employee may resign at any time without prior notification to the employer. This resignation must be a unilateral and voluntarily decision, but it is recommended that it be done in writing.

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:

  • 1. Having been deceived or been subject to deception by the employee through the presentation of false certificates for the purpose of obtaining undue benefit.
  • 2. All acts of violence, insults, mistreatment or serious disciplinary violations carried out by the employee in the course of his or her employment against the employer, the employer’s family members, senior personnel or fellow co-workers.
  • 3. All acts of violence, insults or mistreatment carried out by the employee outside his or her course of employment against the employer, the employer’s family members, its representatives or partners, heads of workshops or security personnel.
  • 4. All material damage caused intentionally against the buildings, works, machinery, equipment, raw materials, instruments and all other elements related to the work and all cases of serious negligence that jeopardise the security of persons or objects.
  • 5. All immoral or delinquent acts carried out in the workplace or while carrying out official duties ("immoral" is a very ambiguous expression).
  • 6. Any serious breach of the employee’s obligations or prohibitions pursuant to Articles 58 and 60 of the Colombian Labour Code or any serious fault as defined in the collective bargaining agreements, arbitration decisions, individual employment agreements or regulations. (Accordingly, it is possible to define other serious faults in the internal work regulations.)
  • 7. The arrest of the employee for more than 30 days, unless he or she is subsequently absolved. (It is very risky to use this process due to the uncertainty of the criminal process.)
  • 8. The employee’s disclosure of technical or commercial secrets or other matters that are confidential and which may cause damage to the company.
  • 9. Poor performance in the workplace in relation to the employee’s output when compared to the average output of similar persons. (This process has a specific and complex procedure in order to be actionable.)
  • 10. The systematic breach without valid reason of the employee’s legal or conventional obligations. (This is also ambiguous.)
  • 11. Any employee’s "vice" that disturbs the discipline of the establishment.
  • 12. The employee’s systematic reluctance to accept the preventive, curative or healing procedures prescribed by the employer’s doctor or health authorities in order to avoid illness or injury.
  • 13. The employee’s incompetence in carrying out his or her duties. ("Ineptitude" is an extreme and ambiguous expression.)
  • 14. The fact that the employee has been granted a retirement or disability pension while working for the employer.
  • 15. Non-work-related chronic or contagious illness, as well as any other illness or injury that is not possible to cure within 180 days

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:

  • Formal notice of the start of the disciplinary process to the employee who committed the alleged fault.
  • Formulation of an indictment or charges, either verbal or written, stating precisely the conduct and the disciplinary issues arising from the misconduct and the provisional qualification of this misconduct as a disciplinary matter.
  • The transfer of every single piece of evidence that supports the indictment of the employee.
  • The indication of the term within which the employee can dispute the evidence presented and present his or her own evidence.
  • The final judgment, fully and completely substantiated.
  • The imposition of a disciplinary sanction, proportional to the events that sustained the disciplinary process.
  • The possibility for the employee to present an appeal before the appointed authority within the company.

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:

  • employees with active union protection. (Although the contracts of protected union workers may be terminated for just cause, the employer must nevertheless initiate a special proceeding to obtain permission to dismiss a union worker);
  • employees with health or maternity protection (without prior authorisation from the Ministry of Labour);
  • employees with circumstantial protection (ie those that would benefit from a collective labour agreement for as long as the dispute remains unresolved);
  • employees who have filed a workplace harassment complaint or who have acted as witnesses in workplace harassment proceedings; and
  • employees who are within three years of being granted a retirement pension.

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.

Godoy Córdoba member of Littler

Av Calle 82 No. 10 - 33 Pisos 5 y 11
Bogotá
Capital District
Colombia

+57 1 317 4628

+57 1 317 4637

info@godoycordoba.com www.godoycordoba.com
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Law and Practice

Authors



Godoy Córdoba member of Littler is the only Colombian firm specialising in labour, social security and immigration law with global coverage. Its eight partners represent a combination of experience gained over four generations of practice. The firm has an interdisciplinary approach, led by its managing partner and in-house team who constantly generate technological and service solutions. Its main area of practice is labour law: understanding the client’s business and its main challenges. This is supported by seven partners, one of whom is a former magistrate of the Supreme Court of Justice. The firm has a global accounts department that caters to clients outside of Colombia in over 40 countries around the world. The firm has a series of specialised units dedicated to reaching agreements and administrating collective conflicts within companies with unionised and non-unionised personnel.

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