Bill No. 367/2023C, through which the Ministry of Labor presents the proposed labor reform currently under consideration in committee, includes within its provisions Article 7, which establishes employment protections or, as set forth in the proposed text, “reinforced labor stability”. It identifies five different types of protections, as follows:
- Those covered by union protection, in accordance with legal and conventional terms.
Although the aforementioned statement does not provide further details, it is understood that union protection refers to the protection granted to workers who belong to trade unions, who meet certain legal conditions and, due to their union activities, enjoy labor stability.
The term conventional union protection is a jurisprudential term and refers to the union protections contemplated in the collective bargaining agreement entered into with the company or the union.
Currently, union protection has constitutional scope, given the need to protect union activities and exercise. It arises from the ILO agreements ratified by Colombia and requires judicial authorization from the labor court for the dismissal of a worker under union protection.
- Those covered by health protection, that is, a serious health condition that prevents or substantially hinders the performance of their duties under regular conditions.
Currently, health protection arises from jurisprudential development and the application of Article 53 of the Political Constitution. It is noteworthy that health protection applies to individuals who are not classified as having a disability and do not have any degree of physical limitation; on the contrary, they are in a vulnerable situation due to a temporary or potentially permanent illness, with or without a classification of loss of work capacity.
- Persons with disabilities, that is, those who have a physical, mental, sensory, or intellectual limitation in the medium or long term, regardless of the degree, provided that in a given context it prevents the worker from their professional integration or the development of occupational roles under dignified and equal conditions. For this protection to apply, the worker does not need to have been classified with a percentage of loss of work capacity.
It should be noted that, like the previous protection, this one exists in the judicial sphere due to jurisprudential development. It corresponds to a nuance of health protection. In this case, the intention is to refer, as the Constitutional Court has done, to the disability scale implemented in Law 1346 of 2009, although as contemplated in the proposed reform, jurisprudence has indicated that its application does not necessarily require a classification of loss of work capacity. On the contrary, a medical certificate attesting to the pathology or limitation suffices.
- Women who are pregnant and up to 6 months after childbirth. This same protection shall apply to the spouse, partner, or permanent companion if she does not have formal employment and is their beneficiary in the social security health system.
Regarding the application of this protection, unlike the previous two, it has had normative and jurisprudential development. Currently, its application extends not only to fathers but also to mothers linked through contracts of a civil nature, such as service provision contracts.
Jurisprudentially, this item encompasses three different types of protections: the first is the protection during gestation or pregnancy, which extends until the completion of the maternity leave weeks; the second, known as the lactation period, provides protection to the mother during the first 6 months of life. These two leaves are extended to the father when the mother is absent due to death, abandonment, or illness.
The third protection arises from being a “father or mother who is the head of household” which, although initially established exclusively for women, was jurisprudentially extended to fathers. Its application in jurisprudential matters has certain limitations and conditions for its configuration.
- Pre-retirees, that is, those who have three (3) years or less to meet the minimum number of contribution weeks, or when having the required weeks, they lack the same time to reach the retirement age.
The pre-retiree protection, with the proposed provisions, does not present a significant change in its application, since currently the protection is configured if the worker, being within the last three years to reach the age, the equivalent of that period allows them to meet the minimum number of contributed weeks, or, lacking three years or less to complete the weeks, they already have the age, that is, greater relevance is given to the weeks remaining to be accrued than to the worker's age itself. Therefore, what this numeral intends is to clarify the conditions for the pre-retiree protection to operate, actions that have already been indicated in jurisprudential development.
Now, regarding the aforementioned protections, although, as indicated, they have significant jurisprudential development, various questions arise from the proposed provisions, especially regarding their application, since having extensive jurisprudential development, the parameters for their application and their limitations have been established, which are not evident in the proposed provisions. Consequently, the question arises: will the application of the protections proposed in Article 7 of the bill be limited, in an exegetical manner, to the conditions stipulated in the statements? If so, their application could be limiting, both for the worker and the employer.
On the other hand, Article 7 of the proposed bill establishes two paragraphs, which indicate the form and requirements necessary for contract terminations. Its first paragraph addresses the effectiveness of terminations for just cause: for numeral one, on legal and conventional union protection, judicial authorization will be required from the labor judge through a special process, and for numerals 2 to 5, authorization from the Ministry of Labor. In the second paragraph, an exception is created to the authorization procedure for contract termination in cases of protections 2 to 5, only if, at the time of hiring, the condition was known and recorded in the employment contract.
As indicated, these guidelines correspond to extensive jurisprudential development in matters of reinforced labor stability. Consequently, the proposed provisions under study do not present new postulates or create new protections; they merely seek to regulate what already exists through jurisprudence, and, as previously mentioned, generate ambiguity at the time of their application.