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The labor challenges left by the new crisis

At the same time, in the surviving companies, there was a period of strikes to achieve labor minimums devastated by the crisis. The response of the liberal party–recently taking office with the President– was to boost a protectionist policy very much linked to the New Deal of American President Franklin D. Roosevelt: company protection, trade union legalization, work contracts, 8-hour work shifts, severance, paid vacation, disease assistance, and agrarian reform, among others.

As a milestone of this process, contrary to the traditional current that stated that property by itself had a social function, the constitutional reform of 1936 included obligations to large property owners, with the possibility of expropriations for the sake of social interest and also added interventionism to companies to rationalize production and protect the workers.

Today, millions of us are faced with a new world crisis that destroyed employment in Colombia, contradicting the Labor Code of 1950 and its associated laws, and whose interpretation, distant from the Constitution, deepens it.  The Colombian Administrative Department of Statistics (DANE, for its Spanish acronym) reported in June of 2020 an unemployment rate 19.8%, where a total of 4.2 million Colombians lost their jobs, compared to the same month of 2019, therefore the vacant population reached 18.3 million people.

This situation with the possibility of rapidly increasing and provoking conditions to increase explosivity of the unemployed–as has already occurred in some–lacking resources to survive, and for those on the limit of survival see their incomes dwindle. This situation pulls down the rights of the surviving workers in the face of great demand for employment and reduced offer.

The legal rights and guarantees of workers did not withstand the quarantine, as consented layoffs–or disguised suspensions– or agreed payment cuts test the labor equality of the parties, which nullifies the agreements of worsening conditions between employers and employees, as it is assumed that the latter should accept the proposal of the former for the fear of being fired or not perceive the diminished sum provided as severance or payment.

Some employers laid-off workers because they did not produce earnings during the lockdown, while others foresaw the growing snowball effect that finally would impact the whole economic activity, and loyal to their principles of humanization and solidarity, kept work contracts, such as the very publicized of the company Arturo Calle, while others also had the same fate of their workers and became bankrupt.

Therefore, among the immediate challenges, one of the first orders of business, the old discussion, transformed by the years of developing Article 333 of the Constitution: “enterprises, as the base of development, has a social function which implies obligations.”

Should they, as a unit of economic exploitation or service providers, only serve as providing earnings to their owners, as is the current paradigm of the “deregulators” or do they have social obligations, especially in times of crisis?

The first is to establish that social responsibility is regulated by law as proclaimed in 1936, or it is left to the constitutional jurisprudence as some fundamental rights judges have done, but denied by others.

Now, facts and unexpected elements of judgment provide consistency to the need of this definition: the sustained paradigm and developed in Colombia for years of eliminating the intervention of the government in the economic life of the country and leave it to the free will of private enterprises, came down crashing with the call of help from businessmen and liberal economic theorists for assistance from the government with exemptions, loans, funds and other measures of the orthodox interventionist during the pandemic, acknowledging the failure of the neoliberal principles.

Furthermore, there are proposals from a group of economists–devoted for some time to eliminate official intervention–of taking immediate actions with the same spirit of the New deal of the 1930s, for a short time to recover companies and the economic activity, as compelled to take medicine and when the crisis is over, return to total reregulation.

Looking at another challenge, in regards to social rights, there is the injustice of the strategies of the current regime in public entities and activities of legalizing the stability and rights of the workers, but in practice, they are circumvented drawing upon service providing contracts, without any type of social protection, no guarantees, do give way to clientelism, expendable without the formality of a due process and the right to defense, putting the lives of these servers to the whim of a superior officer.

Paradigmatic is the unjust treatment received by healthcare workers during this pandemic, with no labor guarantee, while they withstand the hard battle against the pandemic. It is time to face this bringing in employment contracts challenge.

The changes in the subjects of occupational relationships should be based on a new social normativity: in private and public labor relations workers or employer are subordinates that provide services, tied by a work contract or by a legal and regulatory relationship, ignoring those millions that lost their jobs or do not have an employer and live only from their work.

The massive social protest of last year, discontinued by the lockdown during these months were invigorated more by extensive communities that do not see a clear future, than by the plight of employees, workers, and trade unions that summoned them, as occurred in many other countries.

The International Labor Organization is referring not only to direct employees (with a labor relationship) as workers, but also to all those that live from their work and who having been fired hope to be hired again, but in the meantime are invisible for the social normativity.

They have the right to social security, the measures to prevent lack of resources, and the effective association, and negotiation for defending their rights. Within this same line is the challenge of regulating telework and occasional or temporary workers.

We cannot escape from effectively developing the mandate and principle of the Constitution of 1991, reinforced by international treaties and conventions.



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