The right to work constitutes one of the fundamental pillars of the Social State under the Rule of Law, and as is obvious, one of the main constitutional prerogatives granted. This has been recognized by the highest Constitutional Court of Colombia, which in ruling C-614 of 2009, reiterated in multiple decisions, determined the dimension of the constitutional protection of this right, stating literally that work, being tri-dimensional in nature as a principle, right, and legal duty, “enjoys broad protection under the Constitution.”
Within the aforementioned protection, the legal figure of contract reality has been established, with the purpose that any employment relationship that meets the elements of an employment contract receives the legal treatment that this type of relationship implies, regardless of the name that the parties have given to the contract that binds them, achieving the prevalence of reality over what was agreed or formalized.
For the primacy of reality over forms (contract reality) to prosper, first, the constitutive elements of the employment contract must be met, elements that are established in Article 23 of the Substantive Labor Code, and whose joint occurrence is necessary for the existence of the employment relationship.
Thus, according to the aforementioned regulations, the existence of an employment contract is proclaimed when: (1) there is a personal provision of services by the worker, that is, that it is the worker himself who performs the contracted work; (2) subordination or dependency is present in the performance of the contract, which implies that the worker must perform his work in accordance with the instructions or orders of the employer, who will indicate the conditions of manner, time, and quantity that must govern the employee's performance; and (3) the employee receives a salary as direct consideration or remuneration for his work. These requirements, established by the aforementioned regulations, must be fully met and must be concurrent, since in the absence of one of them, the employment relationship will not be considered perfected.
Likewise, this norm under study states that upon the accreditation of the three elements, the recognition and declaration of the existence of the employment relationship is an imminent consequence, regardless of the various contracting modalities that seek to conceal this relationship or agreements that wish to distort it, since the employment contract “does not cease to be one by reason of the name given to it or other conditions or modalities that are added to it[1]”.
The aforementioned assertion has been endorsed by the high courts of the judicial branch, which under a unanimous stance have stated that the real contractual relationship prevails over what was agreed or formalized through a contract or act of will between the parties. In a recent ruling issued by the Honorable Constitutional Court, this corporation stated:
“The reality over the formalities evidenced in labor relations refers to a prevailing constitutional principle in labor matters and expressly recognized by Article 53 of the Political Charter, understood as follows: it does not matter the name given to the employment relationship, since, as long as the integral elements of the same are evidenced, it will give rise to the configuration of a true contract reality.”
[…] “the Court has developed in abundant jurisprudence the notion of contract reality, understood as that employment relationship that is materially configured behind the facade of a contract with a different name. In other words, it is an employment relationship hidden under the appearance of an agreement of wills that differs from the way in which the activity truly develops.”
Now, when addressing this topic, it is common for questions to arise about what is the difference between an employment contract and a service provision contract, and especially, whether an employment contract can exist when a service provision contract has been agreed. Well, regarding the first aspect, the Ministry of Labor through concept No. 50299 of March 1, 2013, indicated that contracting under the modality of service provision is a relationship that does not generate an employment relationship, since it is carried out by reason of the training, experience, and qualification of the person providing their services, with whom the activities to be carried out will be agreed, without there being subordination or dependency.
Regarding the second point, it is valid to recall that regardless of the relationship or the contracting modality, when we are faced with the fulfillment of the three elements of the employment contract prescribed in Article 23 of the Substantive Labor Code, reality (employment contract) will prevail over the formal (service provision contract), and this has been recognized by the courts in their different jurisdictions, as can be seen below:
“In consideration of the essential differences between the employment contract and the service provision contract, the jurisprudence of this Court has insisted on the principle of prevalence of substantial reality over form when determining the type of contract actually existing, in accordance with Article 53 of the Constitution, so that if the material elements for the existence of an employment relationship are verified, the employment relationship must be determined regardless of the name or form that the parties have given to the contract.”
“Therefore, this Court has insisted on the guarantee of the principle of prevalence of substantial reality over form and the effectiveness of the contract reality based on the criteria established both by constitutional jurisprudence, as well as by the jurisprudence of the Council of State and the Supreme Court of Justice, so that a service provision contract cannot be used to actually execute an employment relationship, and when the elements of the same are verified, it must be recognized as such.”