In this article, we provide a jurisprudential analysis of the unification ruling 138 of 2021 issued by the Constitutional Court, which decreed the analysis and admissibility of the tutela action against decisions rendered by the Labor Cassation Chamber of the Supreme Court of Justice, in the understanding that it seeks to examine whether the fundamental rights to due process and access to the administration of justice were violated by the plaintiff, as well as the implications for the employer in cases of strikes regarding payments for contributions to the social security system in health, pensions, and occupational risks, as well as the social benefits to which the worker is entitled.
In the case under study in this unification ruling, the plaintiff, during the term of the contract with Cementos Argos S.A., participated in a strike for a period of 111 days, which affected the recognition and payment of the penalty pension (pensión sanción) in the understanding that neither affiliation nor payment to the social security system in pensions by the employer on behalf of the worker was accredited or presented, and as a consequence, the recognition of the penalty pension to the worker was deemed inadmissible due to the lack of affiliation with the pension fund to which the worker is affiliated.
Taking into account that the penalty pension in Colombia was created by Law 171 of 1961 with the purpose of recognizing the benefit to the worker in case of unjustified dismissal, for those who have worked for a period exceeding 10 years but less than 15 years, thus, the way to compensate the worker for those damages caused by the expectation presented in pension rights upon evidencing the omission of affiliation by the employer during the contractual term. Therefore, this pension is of an indemnity nature and is enforceable upon reaching the pension age, that is, 60 years.
Similarly, Law 100 of 1993, in Article 133, covered the penalty pension with its initial requirements, adding the age of 55 for the recognition of this pension to women, which today ranges around 57 years, reiterating the benefit nature of the penalty pension, being a mechanism of protection against the employer's breach for non-affiliation and non-payment to the social security system.
Now then, according to the nature of the penalty pension, we will proceed to analyze the grounds presented by the high courts regarding whether the suspension of the employment contract due to a strike attributable to the employer entails the non-existence of affiliation to the social security system of workers and their social benefits.
A strike is understood as the cessation of activities to be carried out by workers as a way of imposing on the employer labor and social security conditions that currently are circumstances that affect workers in continuing with the activities dictated by the employer.
The right to strike is enshrined in the Political Constitution of Colombia in Article 56 as a fundamental right of workers in the Colombian territory and constitutionally protected, except for workers who are linked to essential public services defined by the legislator.
Thus, when the suspension of the employment contract occurs due to a strike, as indicated in Article 56 of the Political Constitution together with Conventions 87, 98, and 154 of the International Labor Organization, the suspension entails the cessation of activities by the worker and the cessation of payment for salaries by the employer, that is, the non-existence of payment of vacations, severance pay, interest on severance pay, and service bonuses; however, the fate of social security in pensions is not clearly established, given that it is a matter of utmost importance for the worker, a concept that, by participating in this constitutional right to strike, may put at risk in the future the recognition and payment of the penalty pension for exercising their rights.
In the case at hand, the Chamber of the Constitutional Court states that although the suspension of the contract ceases the activities of the worker and the payment of salaries by the employer, the latter cannot ignore the importance in matters of non-existence of affiliation to the general pension system as established in Article 48 of the Political Constitution as a public service of mandatory character, and that considered by the Constitutional Court as the existence of a strong link between the right to strike and the right to social security in the existence of cessation of activities and, therefore, the employer must make the respective payment for contributions to social security.
Therefore, since social security is considered an inalienable right of the worker, the employer has the primary obligation to comply with the affiliation and timely payment for social security in pensions. In the case in question, the employer omitted the affiliation to the pension system, affecting the timely recognition of the penalty pension, obtaining the fundamental requirements for such recognition, arguing that by participating in the strike as a fundamental right, the suspension of the employment contract was proceeded with, and therefore, it shielded itself by the fact of being a participant, omitting the action of participating in the strike, to omit the non-existence of affiliation under the excuse of the start of the strike.
It is then established that the Labor Cassation Chamber did not take into account the violated facts of the worker, since the admissibility of the suspension was not studied, nor whether the employer effectively complied with the obligation of affiliation to social security in pensions, which in this case was not carried out during the contractual term between the parties.
Similarly, the origin of the strike was not delved into, bearing in mind that there are two scenarios in which the presence of a strike in the company entails obligations and rights for workers. As a first measure, if the strike is illegal, the employer may freely dismiss the workers who have participated, and may also request from the Ministry of Labor the suspension of the legal personality of the union and may seek recourse against the workers for the damages caused. As a second measure, a legal strike is considered when it is attributable to the employer due to the worsening of the worker's labor conditions, preventing the employer from dismissing the workers, with the only power granted to the employer being the suspension of the contract for the duration of the strike.
From the above, it is concluded that the strike in the specific case was attributable to the employer, that is, of a legal nature, due to the breach of the obligations agreed by the employer, this being the breach of not making the affiliation, payment, and subsequent recognition of the penalty pension, affecting the worker's pension future, violating the fundamental rights of the plaintiff as well as the labor rights accredited by the employment relationship.
It is the employer's obligation to recognize the penalty pension regulated by Law 100 of 1993, in cases where it omits the affiliation to the social security system in pensions of its workers, since, being a fundamental and inalienable right of mandatory character, it is not questionable to agree in each case whether the affiliation of the worker is pertinent or not, knowing the existence of the contractual relationship between the parties and the obligation on the part of the employer for such affiliation; therefore, it must not be ignored that the action on the part of the employer affects the pension future of workers if there is no certainty and trust on the part of the employer in the existence of affiliation to the social security system.
Prepared by: Angélica Murillo Reales. Consulting Attorney.