The project that threatens guardianship as a defense against unfair dismissals

During the last few days, much of the public opinion spotlight in Colombia has focused on the labor reform promoted by the Ministry of Labor and the debate that has been generated by the effects of this norm. However, there is an initiative that is closer to becoming a reality, despite that would end elements such as protection against unjustified dismissals.

This is bill No. 459 of 2024 (Chamber) – 051 of 2023 (Senate), popularly known as the reform of the Labor Code, which has nothing to do with the Petro government proposal, but according to complaints made to Portafolio , threatens to end several important rights for thousands of workers.

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Parallel to the labor reform, said proposal, which has already provided three Of the four debates, it has been generating concerns among experts in the field, as Carlos Andres Dussán, a labor lawyer and member of the board of directors of Asolaborales, told Portafolio, who recognized that the country needs a change of this type, but warned that as it is being done, it will generate a mostly negative impact.

“What is being done is a reform of the Labor and Social Security Procedural Code, which is nothing other than the tool that provides the rules of the game to resolve conflicts; to lawyers, judges, workers and companies, in the face of judicial procedures. This was necessary to eliminate excessive formalities, streamline processes and guarantee effective judicial protection,” he highlighted.

Although important, Asolaborales warn that things are not being done correctly as what they described as a “counter-reform” that will remove protections and benefits from workers, while the Mintrabajo reform does the opposite. Although they are aware of which is a difficult issue to explain, they emphasized that yes or yes it must be put at the center of the agenda.

“Let us remember that work, by virtue of article 25 of the Constitution, is a right protected in a special way, and thanks to this the order was given to judges, entities, the State, businessmen, to protect the work in a special way. This means that they do what they have to do to guarantee the stability of people in this matter,” explained Carlos Dussan.

The most affected

ORNo One of the areas that most concerns these experts is the reinforced stability, which covers workers who are in circumstances of special protection, such as those who have suffered violence at work and filed a complaint with the labor coexistence committee, those with health problems, pre-pensioners, and women during pregnancy or lactation.

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“For these people, jurisprudence has established that the guardianship action is an appropriate action to achieve what is commonly known as reinstatement. When there is an unjustified or capricious dismissal, as the labor regulations call it, this mechanism became a first defense and now, because of the message of urgency, this project would end,” Dussán denounced.

On the other hand, they highlighted that many of the fundamental principles of labor law have been ignored, since, when reviewing the articles, the reform ignores that “the discipline of labor law seeks to correct the profound inequalities generated by the productive and social system. Unlike civil law, where the aim is to guarantee legal equality between the parties, “Labor law is based on the protection of the worker, as he is the most vulnerable part.”

Portafolio undertook the task of reviewing the text of this rule, which is currently up for debate in the plenary session of the House of Representatives, and confirmed that, in the face of guardianship, the proposal is to move from this express procedure to what is known as the “ordinary process”, so it would lose priority within the judicial system. Likewise, the time to collect evidence and present a formal request is reduced, from 3 years to only 6 months, or the process will expire.

Workers

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“The reform limits the categories of protected workers, leaving out to groups that have already been recognized by the Constitutional Court, such as those with reinforced occupational stability, health jurisdiction, paternity jurisdiction and the jurisdiction for mothers and fathers who are heads of families,” reported from Asolaborales.

The project also eliminates the 3-month period currently established to hold the conciliation hearing, counted from the notification of the admission order, which for Asolaborales seriously affects the speed of the process.

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“If there are already significant delays under current regulations, the absence of a specific deadline could further aggravate the situation, affecting the efficiency of the process and putting effective judicial protection at risk,” they stated.

Another element of concern, according to Carlos Dussán, is that “it establishes that workers will only be able to request precautionary measures if they present a bond equivalent to 20% of the value of the claims of the lawsuit. This requirement is disproportionate, since many workers lack sufficient financial resources to afford adequate legal representation, much less to cover the additional cost of a bond.”

Justice.

Portfolio File

Affects union immunity, lack of knowledge of the principles of favorability, gratuity, non-discrimination and the protective principle, procedural favoring of employers, as well as a literal reproduction of many negative elements of the General Process Code; They are part of the complaints that were made known against this reform; They are part of the call of Asolaborales.

“With the labor reform, workers are intended to be given back the rights that they should have had 33 years ago, rights that have been historically taken away from them, and now with this bill, which seeks to reform the Labor Procedural Code, without a doubt fundamental rights are also affected,” concluded Carlos Dussán.

Given the imminence of this project passing through Congress, Asolaborales stated that the only viable path they have left is to wait for President Gustavo Petro to object to the rule or that it falls in the Constitutional Court, due to the violations of rights that it entails.