It is common for Pension and Severance Fund Administrators – hereinafter AFP – to raise a series of objections, obstacles, or requirements in response to recurrent requests from their affiliates regarding the recognition of economic benefits provided within the General System of Social Security in Pensions – hereinafter SGSSP –, these additional requirements being, for the most part, greater or more burdensome than those imposed by current applicable legislation, or even being impositions without constitutional or legal origin.
Well, given this reality that encompasses the Pension System, on some occasions an advanced and protective task has been carried out by the judicial branch, seeking to protect the right to social security and the dignified life of the affiliate, who, faced with the obstacles erected by the AFP, finds themselves in a permanent state of defenselessness and vulnerability.
One of these impediments, which has been the subject of constant analysis by Colombian justice, is the default in the payment of contributions to the General System of Social Security in Pensions incurred by the employer during the employment relationship with the affiliate. This breach of a legal duty incumbent upon the latter[1] results in the non-accounting or real reflection of the contribution period in the employee's labor history, and thereby, in the refusal to recognize the pension benefit as a consequence of not meeting the minimum contribution time requirement to be entitled to the right.
In light of the aforementioned case, it is relevant to note that, as provided by Law 100 of 1993 in its Articles 23 and 24, the AFP have the power to require the employer to proceed with the timely payment of contributions to the SGSSP. Thus, the imposition and liquidation of a moratorium penalty for non-payment, up to the power to carry out coercive collection of contributions and interest owed, become the legal mechanisms provided to these entities to prevent employer non-compliance and to ensure that such omissions do not affect the fundamental rights to a dignified life and security of the affiliate.
Thus, when there is an omission in the payment of contributions by the employer, and the AFP does not activate the legal mechanisms for compliance with said duty, it would be improper to impose on the affiliate the obligation to bear the consequences of acts that are not their own and that should in no way affect them, since they are the product of the negligence or carelessness of two actors of the System who chose not to comply with the provisions of the Law.[2]
This position has been adopted by the high courts of the judicial branch, with the Constitutional Court, in custody of the Political Charter, having outlined the importance of the special constitutional protection of the affiliate in the event of employer default in contributions and the omission of the AFP, which mostly conclude with the direct violation of constitutional prerogatives and principles.
Based on the foregoing, this corporation, through Judgment T-173 of April eleventh (11), two thousand sixteen (2016), prescribed the following rule for cases like the one analyzed here:
[…] “in the events where (i) the employer's omission to make payments of social security funds for its workers has materialized and (ii) the AFP has not made use of the various mechanisms that the Law has granted it to obtain the effective payment of what is owed to it, it is disproportionate to transfer the consequences of said omissions to the worker, who, due to these facts, should not be affected in any way and for whom, for that reason, the total number of weeks actually worked should be counted, regardless of whether these have been paid or are in arrears.” (Bold and underlining outside the original text)
It must be concluded, therefore, that the refusal to recognize the pension right based on the employer's default, without the due management and diligence of the AFP, is an unconstitutional act that contravenes the fundamental rights of the affiliate and, therefore, lacks any validity and legal support.
[1] Law 100 of 1993; Article 22. OBLIGATIONS OF THE EMPLOYER. “The employer shall be responsible for the payment of its contribution and the contribution of the workers under its service. For this purpose, it shall deduct from the salary of each affiliate, at the time of payment, the amount of mandatory contributions and voluntary contributions expressly authorized in writing by the affiliate, and shall transfer these sums to the entity chosen by the worker, together with those corresponding to its own contribution, within the time limits determined by the Government.
The employer shall be liable for the full contribution even in the event that it has not made the deduction from the worker.”
[2] Constitutional Court; Judgment T-173 of April eleventh (11), two thousand sixteen (2016); M.P. Alberto Rojas Ríos: “it is not admissible for Pension Fund Administrators to transfer the consequences of the omissions in which both they (in the collection of contributions) and the employers (in timely paying social security funds) have incurred, and thus place the affiliate, the most fragile part within the social security system, in a situation of absolute lack of protection such as that generated as a result of the non-updating of the plaintiff's labor history”.