ALL Estrado - Judicial Decisions April 2024

 See below the most relevant court decisions of April 2024:

Does the existence of one or more collective bargaining agreements in a company preclude the negotiation of a new list of demands?

JUDICIAL DISTRICT: BOGOTÁ

TYPE OF PROCEEDING: ORDINARY LABOR

VENUE OR INSTANCE: CASSATION

DECISION DATE: JANUARY 2024

SUBJECT: UNION MULTI-AFFILIATION, COLLECTIVE BARGAINING, CIRCUMSTANTIAL PRIVILEGES

JUDGMENT: NO CONVICTION

SUMMARY OF THE FACTS

The plaintiff summoned the company to court to order his reinstatement to the same position he held at the date of termination of his employment contract; the payment of wages lost during the period of dismissal until the date of his reinstatement together with the corresponding legal and conventional increases; the contributions to the General Social Security System; the application of the ulta and extra petita principles and the costs of the proceeding.

He based his claims on the fact that on March 9, 2017 the Bogota sectional sub-directorate was formed in whose board of directors he was elected fourth alternate, designation that was informed to the Ministry of Labor and to the defendant company.

He referred that on July 5, 2017, in an extraordinary assembly of the union organization, a list of demands presented to the company on September 4, 2017 was approved; that collective bargaining was not achieved due to the decision of the one called to trial and for this reason a complaint was filed before the Ministry of Labor; that on October 18, 2017, the president of the union organization was notified of the initiation of the procedure; that at the date of his dismissal this procedure had not been decided, so the collective conflict was in force, no collective agreement had been signed and no arbitration award had been issued.

The company's line of defense focused on the fact that although the procedure before the Ministry of Labor was without decision, the collective bargaining of 2017 was not possible, since the extralegal instrument 2014-2018 signed with four other unions was in force without this being denounced as provided in Article 479 of the CST; that the one of 2018 did not take place since the list of demands did not comply with the requirements and the union never reported the changes in its board of directors.

FIRST INSTANCE DECISION

The Sixth Labor Court of the Circuit of Bogotá D.C., through a judgment dated October 5, 2021, decided to absolve the defendant of all the claims filed and imposed costs to the plaintiff.

SECOND INSTANCE DECISION

The Labor Chamber of the Judicial District of Bogotá D.C., by decision of November 30, 2021, revoked the decision in its entirety and imposed costs on the plaintiff.

The Court based its decision mainly on the fact that the motive alleged by the company for returning the petition is unfounded, since the existence of a collective bargaining agreement in the company does not make it impossible for any other union to submit an autonomous petition and thus give rise to a collective bargaining dispute.

In this sense, since it has been demonstrated that the union to which the worker was a member presented a list of demands to the company called to trial and the latter refused to initiate talks, so that the union, in order not to let the conflict lapse, opted to make use of administrative and judicial tools to compel the employer to negotiate, there would be no doubt that the foral guarantee remained in force based on Article 25 of Decree 2351 of 1965; and since the plaintiff was a member of the aforementioned union, the dismissal without just cause during the collective conflict became ineffective.

DECISION OF THE SUPREME COURT OF JUSTICE

Against the aforementioned judgment issued by the Superior Court of the Judicial District of Bogotá D.C., the defendant filed an appeal in cassation, which, as informed above, once submitted, resulted in not cassing the judgment.

The Chamber warned that this corporation has been holding the position that any union organization has sufficient capacity to negotiate on behalf of its members in order to seek more favorable agreements even when its representation is much smaller.

He referred to the analysis made by the Constitutional Court in judgments C-567 of 2000, C-063 of 2008, on the possibility provided for in the Colombian legal system of the coexistence of several union organizations in a company, not only with the capacity of representation but also of negotiation.

Additionally, he brought up the study made by the Supreme Court of Justice in sentences SL930 of 2023 and SL3491 of 2019, which clarified and emphasized the possibility for workers to join several unions, thus allowing a plurality of union organizations, collective bargaining processes, collective bargaining agreements and union multi-affiliation to exist in the same company.

However, this does not imply that the workers can benefit from all the collective bargaining agreements that the trade union organizations conclude or, in any case, extract from each of them a part to build a third conventional statute, since the interlocutor has the duty to choose from all the extra-legal instruments the one he prefers, which will apply to him in its entirety.

Therefore, the Court concluded that the collective bargaining did not lapse because the union organization resorted to administrative and judicial mechanisms to compel the employer to negotiate, so that those who participated in such negotiations, as is the case of the plaintiff, must benefit from the provisions of Article 25 of Decree 2351 of 1965, which regulates the so-called circumstantial privilege.

For these reasons it condemned the company of the claims of the lawsuit.

SENTENCE C-197 OF 2023 - What did the Constitutional Court say about the reduction of the contribution weeks for women to acquire the old age pension?

JUDICIAL DISTRICT: BOGOTÁ

TYPE OF PROCEEDING: PUBLIC ACTION OF UNCONSTITUTIONALITY

DECISION DATE: JUNE 1, 2023

SUBJECT: CONTRIBUTION OF WEEKS TO THE GENERAL SOCIAL SECURITY SYSTEM IN THE AVERAGE PREMIUM WITH DEFINED BENEFIT SYSTEM 

DECISION: NON-LIABILITY OF ARTICLE 9, SECTION 2, PARAGRAPH 2 OF ARTICLE 9 OF LAW 797 OF 2003.

SUMMARY OF THE FACTS

The plaintiff filed a claim of unconstitutionality against paragraph 2 of numeral 2 of Article 9 of Law 797 of 2003, which established as a requirement to obtain the old-age pension in the medium premium system, both for men and women, to have contributed a minimum of 1300 weeks as of 2015; The above on the grounds that the rule in question violated Articles 13, 43 and 48 of the Constitution by not applying the differential approach in favor of women with respect to the number of weeks required to obtain their old age pension in the RPM.

He based his reproach on the fact that the law in question did not provide for a treatment that would guarantee material equality of rights and opportunities between men and women. The above, because despite the fact that women have experienced historical and systematic patterns of discrimination due to their sex in social, labor, cultural and economic scenarios, it established a uniform requirement of contributions; therefore, he memorized that the Constitutional Court has held that Article 13 of the Constitution not only establishes a prohibition of discrimination, but also includes the implementation of affirmative measures in favor of women.

From this perspective, it argued that the Legislator should have adopted instruments so that women could effectively access their old-age pension under conditions of real equality, since the law covered two population groups that merit different treatment, taking into account the application of the differential approach in favor of women. However, contrary to its purpose, it imposed barriers for women to access their pension rights in the RPM by unreasonably and disproportionately requiring them to have 1,300 weeks of contributions at the age of 57, that is, the same number of weeks that men must prove at the age of 62.

CONSTITUTIONAL COURT DECISION

Accordingly, the Full Chamber of the Constitutional Court, in exercise of its constitutional powers, exercised a review of the constitutionality of paragraph 2 of numeral 2 of Article 9 of Law 797 of 2003, which, as previously reported, once carried out, resulted in the declaration of the non-existence of the law, in relation to its effects on women.  

The Court noted that the challenged provision, when interacting with the minimum age requirement in the RPM, generated a deficit of constitutional protection for women, which had to be overcome. This consisted in the fact that the rule gave identical treatment to men and women, despite the fact that each group faces different conditions in the labor and social security spheres, which is inconducive to guarantee simultaneously and concurrently the principles of the pension system. It clarified that although the measure was suitable to guarantee financial sustainability, it was not proportionate to ensure the principles of universality and progressiveness.

Based on this approach, three fundamental axes were identified that articulated the course of the argumentation, in relation to the provisions of the Colombian legal system and international instruments of the block of constitutionality, namely:

• The gender gap is still latent in the labor context due to historical discrimination against the female population, which ultimately results in structural deficiencies represented in disadvantages in the workplace such as wage inequality, informality, higher unemployment rates, low demand for their labor and the burden of unpaid care work.
• The disparity in the number of weeks required to access the old age pension between men and women in the Average Premium System, as a barrier that accentuates discrimination and deviates from the materialization of the right to equality in pensions.
• The visible frontier that separates women's access to pensions, as well as the socio-legal barriers that increase with household care obligations, together with the difficulties of access and stability in the labor market.

Thus, in order to overcome the indirect discrimination generated by the unconstitutional legal situation noted throughout its pronouncement, the Court declared the unenforceability of the aforementioned rule and urged Congress, in coordination with the National Government, to "define a regime that guarantees in conditions of equity the effective access to the right to an old age pension for women, especially those who are heads of household, and that contributes to close the historical gender gap", which, in principle, must be met by January 1, 2026.

Such decision was deferred until December 31, 2025. However, if Congress has not legislated after the expiration of the term indicated:

"the number of minimum contribution weeks required for women to obtain the old-age pension in the average premium regime will be decreased by 50 weeks for the year 2026 and, as of January 1, 2027, it will be decreased by 25 weeks each year until reaching 1000 weeks".

What is the nature of the Appeal?

JUDICIAL DISTRICT: BOGOTÁ D.C.

TYPE OF PROCEEDING: ORDINARY LABOR

VENUE OR INSTANCE: CASSATION

DECISION DATE: SEPTEMBER 2023

SUBJECT: EXTRAORDINARY APPEAL IN CASSATION, LEGAL TECHNIQUE

JUDGMENT:NO ACQUITTAL

SUMMARY OF THE FACTS

The plaintiff summoned the companies to court to declare that he had an indefinite term employment contract with the first one since August 22, 2011 and that the second one, dedicated to logistics activities, acted as a simple intermediary, which prevented him from joining the union organization of the first one, and to receive all the conventional benefits. Consequently, she requested her labor reinstatement, equalization of her salary, payment of the difference with respect to the workers directly linked to the company that she alleged was her employer since April 2018, social benefits, vacations generated from the date of her employment and, jointly and severally, payment of extra-legal benefits, moratorium interest, readjustment of the contributions to the General System of Social Security in pensions, ultra and extra petita together with the procedural costs.

He based his claims on the fact that, since August 22, 2011, he had a fixed-term employment relationship with the company in the logistics sector, being sent as a worker on assignment to the second defendant in which he performed activities inherent to the corporate purpose of the beneficiary of the service; that he carried them out in its facilities with the resources and tools that it provided and therefore, this first acted as an intermediary and prevented his affiliation to the union of said company.

He added that, on May 03, 2018 he was prescribed a series of medical recommendations for the exercise of his position and that on August 06 of the same annuity he requested the defendants to declare the labor contract with the beneficiary company together with the configuration of reinforced labor stability, salary leveling and payment of contributions to the Social Security System; request that was denied.

The line of defense of the beneficiary company focused on the fact that the company outsourced the logistics operation service and the contractor had acted with total autonomy and independence in the development of the commercial relationship; in its defense it proposed the substantive exceptions of prescription, non-existence of the obligation, compensation, collection of what was not due, good faith and generic.

For its part, the contractor emphasized that the legal acts subscribed were framed in the movement of different kinds of cargo, which was alien to the object of the co-defendant; that the relationship with the worker was developed with total administrative and financial independence; it presented as means of defense of merit those of absence of the requested obligations, of solidarity and of reinforced labor stability, non-application of the CCT.

FIRST INSTANCE DECISION

The Fourth Labor Court of the Bucaramanga Circuit, through a judgment dated December 16, 2020, decided to absolve the defendants from all the claims of the lawsuit and imposed costs on the plaintiff.

SECOND INSTANCE DECISION

The Labor Chamber of the Superior Court of Bucaramanga, by decision of August 26, 2022, confirmed the decision in its entirety and did not impose costs when hearing the case at the jurisdictional level of consultation.

The Court based its decision mainly on the fact that, after analyzing the evidentiary material, it was proven that the contractor acted as a true employer insofar as it was the one who recognized rights and exercised the subordinate power over its workers.

He emphasized that the figure of outsourcing allows outsourcing production models, including those of the corporate purpose, so that in these cases it was sufficient to establish who held the subordination to its personnel, which was acknowledged by the plaintiff not only in the statement of claim but also when answering the interrogation of the parties.

DECISION OF THE SUPREME COURT OF JUSTICE

The plaintiff filed an appeal for cassation against the aforementioned judgment issued by the Superior Court of the Judicial District of Bucaramanga, which, as previously reported, once submitted, resulted in not cassing the judgment.

The Chamber noted that the brief with which it was intended to support the challenge was structured under serious technical deficiencies that compromised the prosperity of the proposed charges, inasmuch as the appellant sought to defend its position so that its motions would be granted, omitting that the extraordinary means is not a third scenario to reopen the procedural discussion, but rather grants the Court the competence to "judge the sentence and establish whether the judge observed the legal norms that he was obliged to apply to correctly resolve the conflict" (CSJ SL2342-2022, CSJ SL2857-2022 and CSJ SL3133-2022).

He pointed out that the brief supporting the extraordinary remedy, in accordance with article 90 of the CPTSS, must adhere to the strict technical rigor that its formulation and demonstration require, respecting the rules established for its proceeding, since an appeal of this nature and category is subject to a special and precise technique, which, if not complied with, prevents its decision on the merits, as occurred in the sub lite. 

In this order of ideas, the Court proceeds to set forth, in detail, the rationale for the technical deficiencies existing in the appeal under study, namely:

1. When the attack is directed through indirect means, as in the present case, the factual error attributed to the administrator of justice, in order to be capable of breaking the ruling issued by him, must be of such magnitude that it is evident without any effort. (CSJ SL2618-2022).

 In addition, it resorted to the provisions of CSJ ruling SL 6043 of 1994, reiterated in SL2879-2019 with respect to the error of fact in labor matters, understood as that which occurs when the sentencer makes the medium say

The Court may also rule that when it fails to appreciate it, and by any of these means, it considers a fact to be proven when it is not, or it does not consider it to be proven when it is, with the effect of this error on the substantive law that is thus infringed.

 Thus, it considered that such requirements were not satisfied through statements made by the appellant such as: "outsourcing only serves to reduce labor costs, that is, wages and conventional benefits below the direct workers of the apparent employer; the evidentiary reality shows that it is nothing more than a facade by the beneficiary company", among others that prevented the configuration of a factual dislate capable of breaking the ruling issued by the judicial administrator since, the dialectical exercise imposed by the technique required by the indirect route by which the charges were oriented was not carried out, since the censorship forgot that:

i) The factual basis of the challenged ruling was that, according to the evidence brought to the trial, the subordination that characterizes the labor relationship was exercised by the contractor against the plaintiff in such a way that the latter acted as a real employer, without any of the assertions made in the attacks being observed to demonstrate that the judge grotesquely erred in such evidentiary conclusion either by the lack of assessment of some element of conviction or by the misguided examination of others.

ii) Pursuant to Article 90 of the CPTYSS, it was his duty to explain how the lack or defective evaluation of evidence led him to the errors that have that quality and to have determined what the evidence actually proves. 

2. The appellant inappropriately intermingled the paths of substantive law in that "(...) he improperly amalgamates the direct and indirect ways of violation of substantive law, which are exclusive; since their formulation and analysis must be different and separate, because the first entails one or several factual errors, while the second entails a legal error (CSJ SL3720-2021)".

3. The true legal support of the Court's sentence - an exercise that should be advanced in an independent charge on pure law - was not attacked, and that was based on the fact that:

1. i) "[...] the preponderant element when defining whether we are dealing with an independent contractor and not a simple intermediary, [...], is the subordination to its personnel", that is to say that "the company benefiting from the service does not interfere with it, because that is what the autonomy that characterizes it is all about",

ii)" [...] the figure of outsourcing allows outsourcing productive models even of the corporate purpose".

4. Also, it found that, the attacks start from a false premise in the terms set forth by this Corporation in CSJ SL17025-2016, reiterated in CSJ SL3808-2020, insofar as it is not true that, as the appellant referred, it was found demonstrated that this outsourcing was due to a violation of labor rights of workers by constituting a tool to lower labor costs.
5. Finally, in the attacks, the wrong assessment of the testimonies was alleged, forgetting that the evidence qualified in cassation is: i) the judicial confession, ii) the authentic document and iii) the judicial inspection, so that its study is only possible if a fault is demonstrated in any of them (CSJ SL1233-2023), which is not the case in the sub lite.

From the foregoing, it concluded that the questioning formulated by the appellant was insufficient to overturn all the arguments of the Court and, therefore, the ratio decidendi of the decision challenged in the extraordinary venue remained unchanged, reason for which the decision maintained its validity and the presumption of correctness and legality that surrounds it.

For these reasons, it acquitted the companies of the claims of the lawsuit.

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