Although four debates are still pending in the Congress of the Republic, the draft labour reform of the Government of Gustavo Petro It will bring various challenges that will affect the company-employee relationship in the country. This is detailed by analysis of expert lawyers in this matter.
According to these, the national government presented the labor reform project under noble objectives, such as the supposed job stability; however, it achieves this by attacking the business sector, which generates, according to the Dane (National Administrative Department of Statistics), more than 96% of the jobs in the country, 76% of this percentage in the head of small and medium-sized companies (SMEs).
The tax lawyer Sara Valbuena, legal director of Ventus Consultores, explained to infobae colombia that the Government implemented measures that unfortunately increase the cost of the operation of businessmen, according to the calculations of unions, up to 20% more than the current cost.
“This will generate the opposite effect to what is desired, since companies will think twice about hiring a worker under the labor contract modality and it is possible that the job offer will drop and will make the population without work agree to accept informal jobs,” lament.
According to her, With this initiative, the Government does not attack the real problem in Colombiawhich is the unemployment of 50% of Colombians or migrants, but rather attacks employers who generate formal jobs in the country with effort, and even worse, the reform is aggressive with medium or small entrepreneurs.
He noted that by limiting figures such as contracting through the provision of services, which will be implemented only for specialized jobs, will force large companies to hire or buy products and services directlywhich will make SME-type companies disappear in the commercial chain, which will make the already strong stronger and the weaker weaker.
“The reform demotivates and does not generate incentives to create new jobs. As it is, it generates aggressive labor regulations and will increase the evasion of formal jobs in the business sector because it forces the employer to look for mechanisms other than formal labor contracting so that the operation does not stop being profitable,” warned the tax lawyer.
He added that to this is added the current tax reformwhich also attacks the same sector and generates the displeasure that the Government seeks everything except betting on the country’s private economic sector.
During a session of webinar, Lawyer from Universidad de los Andes Sebastian Bendiksen, managing partner of BéndiksenLaw, exposed six aspects in which the labor reform will affect companies. These agree in majority with what was said by the lawyer Sara Valbuena.
The first is higher labor costs. Sebastián Béndiksen confirmed that practically everything will be more expensive for companies, since all surcharges go up and all compensation goes up. In addition, the apprenticeship contract increases in terms of the amount that companies have to pay.
Additionally, paternity leave will be extended, which will also affect costs. In turn, the nightly surcharge payment for companies it will start for business hours from 6:00 pm, (currently this surcharge is paid from 9:00 pm) so the companies will have to assume an additional cost overrun in operations. In the same way, the working hours and the time that a server can work would be limited.
“In this sense, the companies that are on the limit after this reduction will have to hire new staff because they are going to run out of people to fill those shifts. In places that have to work 24 hours, they will have to hire new staff,” said the lawyer.
Also coming with the reform is an obligation for companies to adjust wages that are below two minimum wages in order to Consumer Price Index (CPI).
“This could be a heavy burden, especially for the smallest companies, which are the ones that handle this type of salary the most, there their operating costs will also rise ostensibly,” Béndiksen pointed out, recalling that article 20 of the reform would also be forcing companies to pay a 100% surcharge for work that takes place on Sunday, currently it is 75%.
The reform seeks to generate greater stability for workers and for this it would be limiting the way companies hire.
“With the reform it will be much more difficult to contract by work or by period. The general rule would be the employment contract for an indefinite term. So, it would be more stability for workers, but also higher costs for employers,” he pointed out.
In this same sense, the expert argues that the reform will limit companies much more when laying off their employees. According to Béndiksen, if companies arbitrarily or discriminatoryly dismiss employees, they will have the right to request reinstatement.
With the reform too it will be much more difficult to have contractors or to have temporary service companies. Thus, once the provision of the temporary service is finished, which can last a maximum of one year, it cannot be extended or contracted with a different temporary service company.
Another aspect that will affect companies with the labor reform is that when companies outsource services, it will be easier for the company to end up being declared the true employer in the face of a legal dispute, despite the outsourcing.
“So, I have outsourced my services marketing with a contractor, but after the reform it will be much easier for them to say no during litigation, that company was a mere intermediary and in reality the employer is BéndiksenLaw”, he explained.
According to the lawyer, After the reform, companies will also have many problems hiring temporary employees and the employment relationship will be increasingly difficult to avoid.
“With this reform, companies like Rappi would have to convert their rappitenderos into workers and they would stop being independent contractors. There is a whole title in the reform aimed at regulating how digital application companies operate, ”he said.
All companies should review current contracts and their internal regulations. This, because the due process to dismiss someone from the company would change and matters such as the inclusion and the right to strike They must be included in the Internal policies.
“The companies that sent a letter to fire their employees are going to have to change. In addition, there are issues of inclusion and non-discrimination against non-binary people and those who have a change of gender identity that must be reflected in the policies and regulations of the companies ”, he pointed out.
In this same sense come reforms where Workplace violence will be considered almost anything and, additionally, companies will be forced to grant flexible hours in certain cases. These are all issues that are not currently in the regulations of most companies and will have to stay there.
In the case of the formalization of companies, the reform contains a whole chapter of legalization of digital platformsagricultural work, formalization of employment for migrants, for professional athletes and for domestic workers.
He strengthening of workers’ associations and unions It will be much easier for the employees. “With the reform it will be much easier to form unions and it will be easier to go on strike. Additionally, there will be less opportunity for companies to declare strikes illegal. In this same sense, the repercussions for those who go on strike illegally will be less,” he said.
Finally, the lawyer stressed that the reform has a absurdity by not obliging the public sector to comply with the aspects it proposes.
“That the reform does not include the public sector, which is where the provision of services is most abused, is nonsense. So, they squeeze the companies, but the Government continues to skip all the labor principles that it seeks, ”he said.
In conclusion, the lawyer also highlighted the value of the reform to guarantee the right to work. However, Béndiksen sees a problem in the fact that the Government unloads this responsibility on the companies and that it does not propose any type of support for a transition.
“The reform has interesting aspects for the worker in terms of formalization because there is a lot of informal employment in Colombia. So, on that side, it is fine to seek the protection of the workers, to formally bind them all by contract, but there is the problem that the entire burden of the reform falls precisely on the companies and no kind of subsidy is being created to support with the formalization and then they leave the burden to the companies and for the SMEs, above all, it will be a huge burden”, said the lawyer Sebastián Béndiksen.
