It is important to note that:
In numeral 5 of Article 3 of Law 1610 of 2013, it is stipulated as a function of the labor inspection to act as social security, accompany and guarantee compliance with labor regulations of the General System of Occupational Risks and Pensions.
What actions are carried out in labor inspections?
One of the actions of labor inspections is to carry out auditing exercises, through in-person visits of a general nature to companies, in order to verify compliance with labor and social security regulations.
Visits by the Ministry of Labor may originate for two (2) main reasons:
1. By scheduling in the protocol inspection system, which is based on prior investigative activity to determine the sectors where the highest recurrence related to labor non-compliance originates.
2. Due to the PQRSD filed with the Ministry, a procedure that can be carried out by an "affected" worker and even by a former worker who, in their opinion, claims that the company handles practices that violate workers' rights.
Does the Ministry of Labor notify its visits?
The truth is that, generally, whenever an inspection is to be carried out, the Ministry of Labor notifies the company in advance so that its legal representatives are present during the inspection. However, the inspection may be carried out at the company without prior notice and at any time.
That is why it is important to be clear about the arrival time of the assigned inspector, since if a reasonable waiting time is exceeded, the inspector may leave and prepare a report where the organization is fined for "obstructing the inspection work".
TIP: When receiving the inspection visit, it is important that the company shows cordiality, friendliness, and attentive listening regarding the basis for which the company must be inspected by the delegate of the Ministry of Labor. Generally, on the first visit there is no sanction; it is evaluative in nature, an analysis is made of what should be improved or corrected, and accordingly, the Ministry schedules a new visit where the improvement actions previously audited will be validated.
Recommendations
- Primarily, it must be clear what documentation may be requested by the Ministry of Labor, in order to have it complete and updated with the formal and substantive requirements of each one.
The following documentation is generally required by the labor inspection at present:
- Certificate of existence and legal representation.
- List of workers in Excel, including ID number, full name, type of contract, salary assignment, and start date.
- Payroll for the last three months, reflecting the payment of overtime, Sunday and holiday premiums, loans, and union deductions.
- Record of delivery of work uniforms for the last year.
- Record of control of supplementary work (overtime and Sunday work); this report is required in Excel for review. Last semester of 2021 and first semester of 2022.
- Resolution authorizing overtime work currently in effect, issued by the Ministry of Labor (if applicable).
- Social security contributions for the last three months for all employees.
- Proof of deposit of severance pay (cesantías) for the last year.
- Proof of enjoyment or payment of vacation for the last year.
- Proof of payment of the last two service bonuses (prima de servicios).
- List of unionized personnel with contact information, if they have a union organization.
- Evidence of how the union organization and the collective bargaining agreement (if applicable) are made known.
- Documentation proving the delivery of personal protective equipment according to the position and level of risk exposure of each worker.
- Minutes of the formation and operation of the workplace coexistence committee.
- Record of occupational accidents and their investigations for the last year.
- Minutes of the formation and operation of the COPASST (Joint Committee on Occupational Health and Safety).
- Certificate of compliance with the SG-SST (Occupational Health and Safety Management System) for the last year issued by the ARL (Occupational Risk Administrator).
- Certification of verbal contracts.
- Copy of the internal work regulations.
- Copy of the collective bargaining agreement and/or collective pact, as applicable.
2. The company subject to the visit by the Ministry of Labor may rely on the company's attorney or a trusted attorney, and through them respond to the requirements and/or orders issued by the Inspector regarding the findings of the audit.
3. All processes carried out by the Ministry of Labor through inspectors must comply with the constitutional postulates of due process, therefore all orders or requirements will indicate the deadlines and remedies available against them.
4. It should be noted that, although the function of the Labor Inspector is to ensure compliance with the employer's obligations, they are not authorized to recognize rights or to compel payments to workers. The Inspector may impose sanctions upon evidencing non-compliance with regulations.
5. If you are subject to an audit with findings, it is important to correct the detected non-compliance immediately, as this will allow for a lower degree of sanction or may even lead to the dismissal of the investigation.
Hernando Zuñiga – AZC CONSULTING ATTORNEY