Bills propose changes to collective labor law

The Colombian government has filed 3 new bills with Congress for approval which, if they become law, will make major changes to the rules on collective bargaining. Colombia is currently in the accession process with the OECD (Organisation for Economic Cooperation and Development) as part of which the Government is required to make changes to its labour market policy and governance.

The first Bill is intended to eliminate the present practice whereby employers can agree collective bargaining agreements with non-union employees. These non-union agreements are currently very common in Colombia and employers will offer incentives/additional benefits to non-unionised employees.

The second Bill will introduce the potential to agree collective bargaining agreements at industry or sector level. Currently collective bargaining agreements may only be concluded at the level of the individual employer. The intention is that industry level agreements will apply to all unions/employers in that industry. This will be a significant change, particularly for smaller employers who will not have the same level of influence in negotiating the agreements as bigger companies but will be bound by the terms of any agreement.

The third Bill will make changes to union representation. Currently if a union has any members in the company the employer has to negotiate with the union representative. The new Bill would change that so that the employer only has to speak to the main union (by employee membership).

Congress will need to approve the 3 Bills by June, or they will need to be re-introduced in the next parliamentary semester.

Constitutional Court extends dismissal protection to independent contractors

Colombian law provides that it is not possible to terminate an employment agreement without the authorization of the Ministry of Labor, even with just cause, where an employee is on health leave or has restrictions on complying with his/her labor duties due to ill health. In a recent decision the Constitutional Court extended this special protection to independent contractors. According to this decision, employers will not be able to terminate independent contractor agreements without making enquiries as to the contractor's health, as if the contractor has significant health problems the authorization of the Ministry of Labor will be required.

Labor intermediaries: decision of the Administrative Court causes uncertainty

In 2016 the Colombian Government has issued a Decree which established guidelines for labor inspectors to follow when carrying out audits on employers suspected of illegal outsourcing. Illegal outsourcing involves an employer using an intermediary to employ workers, rather than employing them themselves. The Decree set clear boundaries regarding when the use of outsourcing in core business activities is legal. The Ministry of Labor has been clamping down on the use of illegal outsourcing. There are currently numerous ongoing investigations and the Ministry may impose fines of up to 5000 times the minimum wage. The Administrative Court has now suspended the governmental Decree, creating uncertainty as to when outsourcing will be illegal.