Key Developments for 2017

Prohibition on employers requesting pregnancy tests as a labour-hiring requisite

Bill 030/15 C seeks to reform Law 1257 of 2008, so that companies may not request pregnancy tests as a pre-requisite to hiring female candidates, which has the effect of excluding women wanting to work in high-risk positions.

Requesting pregnancy tests as a hiring pre-requisite would result in fines worth 50 times the minimum legal salary (COP 34.472.750 as of 2016).

For privately-owned companies, carrying out this practice on three or more occasions shall result in suspension of activities.

By 31 January 2017, all employers must implement the new labour security and health system

By 31 January 2017, all employers must implement a labour health and safety management system pursuant to Decree 1443 of 2014.

Under Decree 1443 dated 14 July 2014, the Ministry of Labour introduced the Occupational Health and Safety Management System (“Sístema de Gestión de la Seguridad y Salud en el Trabajo” (“SG-SST”) ), which sets out the obligations that all employers must comply with and implement in their companies.

Some of the obligations that employers must review, update, implement or comply with, are the following:

  • Define, sign and, promote an Occupational Health and Safety policy in favour of all employees;
  • Assign, file, and communicate specific responsibilities in the SG-SST at all levels of the organisation, including top management level; and
  • Define and assign financial, technical, and human resources to design, implement, review, evaluate, and upgrade prevention and control measures.

Labour Risk Administrators, as social security entities under the labour risks regime, must assist employers in implementing this system.

Proposal to increase overtime/night shift surcharges’

Under Bill 172/15 C, dated 1 August 2016, overtime will be compensated at a rate of 100% of salary calculated by reference to hours worked and night shifts (between 6:00 p.m. and 6:00 a.m.) will be compensated at a rate of 35% of salary by reference to hours worked.

Key Developments for 2016

Premium service bonus applies to domestic labour employees

On 7 July 2016, Law 1788 of 2016 came into effect, extending premium service bonuses (“Prima legal de servicios”) to domestic labour performing employees such as housemaids, butlers, chauffeurs, etc. Therefore, domestic-labour employees are eligible to one (1) month’s additional salary per year, payable half in June and half in December of each year of service, or proportionally a fraction thereof.

Labour Outsourcing Regulation

Under Decree 583 of 2016, the Ministry of Labour defined labour outsourcing as a process that a beneficiary develops to obtain goods or services from a provider, as long as labour laws are complied with

However, the Ministry shall view the outsourcing as illegal, whenever the following occurs:

  • Whenever personnel are hired for the development of permanent activities; and
  • Personnel are hired in such way that it affects constitutional and labour rights.

Given the above, outsourcing is permitted even in such cases where permanent activities are performed in favour of the customer as long as the provider complies with all labour laws in favour of its employees.

Labour Judges are competent to adjudicate labour lawsuits against foreign States

The Labour Chamber of the Supreme Court of Justice, under providence dated 20 April 2016, stated that the jurisdiction of Colombia is competent to adjudicate conflicts between individuals who provide services and foreign States officially represented by diplomatic missions, such as consul offices, delegations, etc. According to the Court, foreign States do not have jurisdictional immunity with regards to labour agreements executed under Colombian territory.

With thanks to Patricia Vergara Gómez and Juan Sebastián Restrepo of Gómez-Pinzón Zuleta Abogados S.A.S. for their invaluable collaboration on this update.