Although four debates are still pending in the Congress of the Republic, the project labor reform of the government of Gustavo Petro This will bring various challenges that will affect the company-employee relationship in the country. This is detailed by the analysis of expert lawyers in the field.
According to these, the national government presented the labor reform project under lofty objectives, such as the supposed stability of employment; however, it achieves this by attacking the corporate sector, which generates, according to the Dane (National Administrative Directorate of Statistics), more than 96% of jobs in the country, 76% of this percentage at the head of small and medium-sized enterprises (SME).
The tax lawyer Sara Valbuena, legal director of Ventus Consultores, explained to GlobeLiveMedia colombia that the government has put in place measures which unfortunately increase the cost of running business people, according to the unions’ calculations, by up to 20% more than the current cost.
“This will generate the opposite effect of what is desired, since companies will think twice before hiring a worker under the terms of the employment contract and it is possible that the job offer will drop and make the worker accept unemployed population to accept informal jobs”, lament.
According to her, With this initiative, the government is not addressing 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 numbers such as contracting through service delivery, which will only be implemented for specialist jobs, will force large companies to directly hire or purchase products and serviceswhich will make SME-type enterprises disappear in the commercial chain, which will make the stronger ones stronger and the weaker ones weaker.
“The reform demotivates and does not generate incentives to create new jobs. As it stands, it generates aggressive labor regulation and will increase escapism from formal jobs in the corporate sector as it forces the employer to seek mechanisms other than the formal employment contract so that the operation does not cease to be profitable”, warned the tax prosecutor. .
He added that to this is added the current tax reformwhich also attacks the same sector and generates discontent that the government seeks anything but betting on the country’s private economic sector.
During a session of online seminar, Lawyer from the Universidad de los Andes Sebastien Bendiksen, Managing partner of BendiksenLaw, outlined six areas where labor reform will affect business. They mostly agree with what was said by lawyer Sara Valbuena.
The first is higher labor costs. Sebastián Bendiksen confirmed that practically everything will be more expensive for companies, since all surcharges increase and all compensations increase. In addition, the apprenticeship contract increases according to the amount that companies have to pay.
In addition, paternity leave will be extended, which will also affect costs. In turn, the night supplement for businesses, it will start during business hours from 6:00 p.m., (currently this surcharge is paid from 9:00 p.m.) so companies will have to assume an overrun of the surcharge in operations. In the same way, the working hours and the time that a waiter can work would be limited.
“In this sense, companies that are at the limit after this reduction will have to hire new employees because they will run out of staff to fill these shifts. In places that have to work 24 hours a day, they will have to hire new staff,” the lawyer said.
The reform also accompanies the obligation for companies to adjust wages below two SMICs in order to Consumer Price Index (CPI).
“It could be a heavy burden, especially for the smallest companies, which are the ones that manage this type of salary the most, there too their operating costs will ostensibly increase”, underlined Bendiksen, recalling that article 20 of the reform would also force companies to pay a 100% surcharge for work that takes place on Sundays, it is currently 75%.
The reform aims to generate greater stability for workers and for this it would limit the way in which companies hire.
“With the reform, it will be much more difficult to contract work or period. The general rule would be the open-ended employment contract. So it would be more stability for workers, but also higher costs for employers,” he stressed.
Along the same lines, the expert maintains that the reform will limit companies much more when laying off their employees. According to Bendiksen, if companies arbitrarily or discriminatory terminate employees, they will have the right to seek reinstatement.
Also with the reform it will be much more difficult to have subcontractors or to have temporary service companies. Thus, once the provision of the interim service has been completed, which can last a maximum of one year, it cannot be extended or contracted with another interim 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 real employer in the face of a legal dispute, despite the outsourcing.
“So I outsourced my services marketing with a contractor, but after the reform it will be much easier for them to say no in a dispute, this company was only an intermediary and in reality the employer is BendiksenLaw,” he explained.
According to the lawyer, After the reform, companies will also find it very difficult to hire temporary workers and the working relationship will be increasingly difficult to avoid.
“With this reform, companies like Rappi would have to convert their rappitenderos into workers and they would cease to be independent contractors. There is quite a title in reform to regulate the operation of digital app companies,” he said.
All companies must review existing contracts and their internal regulations. This is because the due process for firing someone from the company would change and issues such as inclusion and the right to strike They should be included in internal policies.
“Companies that have sent a letter to lay off their employees are going to have to change. Additionally, there are issues of inclusion and non-discrimination of non-binary people and those with changing gender identities that need to be reflected in corporate policies and regulations,” he said. declared.
In this same direction come the reforms where Workplace violence will be considered almost anything and, in addition, companies will be obliged to grant flexible working hours in certain cases. These are all issues that are not currently in the regulations of most companies and will need to remain there.
In the case of business formalization, the reform contains a whole chapter of legalization of digital platformsagricultural work, formalization of employment for migrants, for professional sportsmen and for domestic workers.
He strengthening worker associations and trade unions It will be much easier for employees. “With the reform, it will be much easier to form unions and it will be easier to strike. In addition, companies will have fewer possibilities to declare strikes illegal. In this same sense, the repercussions for those who strike illegally will be less,” he said.
Finally, the lawyer underlined that the reform has a absurdity by not obliging the public sector to comply with the aspects it proposes.
“That reform does not include the public sector, where service delivery is most abused, is nonsense. So they squeeze the companies, but the government keeps skipping over all the working principles they seek,” he said.
In conclusion, the lawyer also underlined the interest of the reform to guarantee the right to work. However, Bendiksen sees a problem with the government offloading that responsibility onto corporations and that it does not offer any type of support for a transition.
“The reform has interesting aspects for the worker in terms of formalization because there are many informal jobs in Colombia. So, on that side, it is fine to seek the protection of workers, to bind them all formally by contract, but there is the problem that the whole burden of reform falls precisely on companies and that no kind of no subsidy is created to support with the formalization and then they leave the burden to companies and for SMEs, above all, it will be a huge burden,” said lawyer Sebastián Bendiksen.