Currently, globalization and technological tools have enabled foreign companies to hire Colombian personnel, where compensation is agreed in the currency of the contracting company's country, adjusting the contractual relationship to the regulations of that country. Now, what happens when the company is Colombian, but wants to pay the salary in foreign currency, given the devaluation of the currency and the opening of Colombian companies with foreign capital?
We have that, through External Resolution 08 of 2000 of the Bank of the Republic, Article 79 establishes that “obligations stipulated in foreign currency that do not correspond to foreign exchange transactions shall be paid in Colombian legal tender at the representative market rate on the date they were incurred, unless the parties have agreed on a different date or rate. Obligations stipulated in foreign currency that correspond to foreign exchange transactions shall be paid in the stipulated foreign currency.” At first reading, it would be understood that the recognition of foreign currency as salary could only be made if the activities performed under the contract correspond to exchange transactions. However, such limitation would not apply to employment contracts, given the free stipulation of the same regarding the amount, form, or denomination, as established by Article 132, numeral 1, according to which “the employer and the worker may freely agree on the salary in its various modalities, such as per unit of time, per piece or task, etc., but always respecting the legal minimum wage or that established in collective bargaining agreements and arbitration awards”, in addition to the provisions of Article 135 of the Substantive Labor Code; “Article 135. Stipulation in foreign currency. When the salary is stipulated in foreign currency or foreign exchange, the worker may demand payment in its equivalent in Colombian national currency, at the official exchange rate on the day payment is to be made.”
Thus, the employer, even one whose economic activity is different from exchange activities, may establish the salary amount in foreign currency, which at the time of payment must be made mandatorily in Colombian pesos. For this, an exchange rate (TRM) must be set, which may be the one established for the day of hiring, updated month by month, or stipulating a specific day within the employment contract, or establishing a fixed exchange rate, provided that it is not lower than the market rate.
It should be noted that variations in the salary earned in pesos by the worker arising from fluctuations in the TRM are not considered permanent changes or salary reductions, since the stipulated amount is the one set in foreign currency and the equivalent to the amount generated by the exchange to Colombian pesos. This situation applies to the settlement of social benefits, since the stipulation of a specific amount in dollars is equivalent to a fixed amount, so when settling benefits, it must be done with the fixed amount in foreign currency and subsequently converted to pesos.
For Social Security contributions, the variation generated by the market exchange rate must be taken into account, since its total is the salary and must be recorded as a temporary variation. It should be noted that, despite the stipulation of salary in foreign currency, when converted, it cannot be lower than the current legal monthly minimum wage in Colombia.
Nataly Muñoz P. – AZC CONSULTING ATTORNEY