Lyda Janeth Pinto Barón*
* Nurse, lawyer. San Rafael de Tunja Hospital.
Introduction
The Nursing profession has a wide and varied field of work, whether in the private sector or the official sector, whether in the administrative part or in the healthcare part. The important thing is to be aware of what labor regulations govern the different sectors to know what is best for us and what we are entitled to.
I will present the modalities of employment contracting in the private sector and the forms of employment in the official sector, focusing on the Nursing profession and delving into the care part, which is where questions arise most frequently.
1. Official Sector
To talk about employment relationships in the official sector or in the private sector, we must keep in mind that in every employment contract there are two parties, one the employer and the other the worker. In the official sector, at least one of the parties is the State, and generally it is the employer.
Forms of linking
Contract of service. Regulated by Law 80 of 1993, its most important characteristics are: that this type of contract does not generate an employment relationship, because there is no subordination and no salary is paid, there is autonomy and it generates fees. It is done with liberal professions such as doctors, lawyers, engineers, artists, etc., to perform tasks due to their professional training and experience and for a strictly indispensable term.
However, for several years this type of contract has been disfigured to evade social benefits. The Constitutional Court in ruling C-154 of 1997 warns that if people who enter into a service provision contract are subject to labor subordination, meaning that they receive orders, they must claim social benefits.
Statutory or legal modality. It confers the quality of public servant and the administrative act that translates it is the appointment and possession. Its main characteristic is that the employment relationship is already determined by law, there is no possibility of discussing working conditions, nor of setting scopes different from those established by law.
Contractual Labor Modality (official workers). It grants the status of official worker to anyone who is linked to the administration and is translated into an employment contract that regulates the regime of the service to be provided, obviously allowing the possibility of discussing applicable conditions.
Within the quality of public servant are public employees, who in turn can be temporary when they are elected for a specific period, free appointment and removal, and employees in an administrative career.
Administrative Career: Law 443 of 1998
The administrative career is a technical personnel administration system to guarantee the efficiency of public administration, to offer equal opportunities, to train personnel, to provide stability in employment and to promote promotions.
The provision of career jobs will be done through competition or promotion.
The contest must be subjected to a series of stages or processes such as: the call, dissemination, recruitment, tests, list of eligibles, trial period and registration in the race.
At this time the competitions are suspended, therefore the provisional appointment operates.
Provisional Appointment. In the case of definitive vacancies, the provisional appointment proceeds while the competition is called for the definitive provision of employment. For temporary vacancies, they will only be provided for the duration of the vacancy.
2. Private Sector
The modalities of labor contracting in the private sector are regulated by decrees 2363 and 3743 of 1950 or also called the Substantive Labor Code, with all its modifications.
Depending on its form, it can be: verbal, which is understood as an indefinite term and has no trial period, and a written contract.
According to its duration: for a certain period of time, for the duration of the work, for an indefinite period of time and to carry out occasional work.
Fixed-term contract
It must always be in writing.
• Fixed term less than one year: It can be extended three times for equal or shorter periods, after which the renewed term may not be less than one year.
This type of contract gives the right to all social benefits in proportion to the time worked, including vacations and service premiums.
• Fixed term up to three years: It is renewable indefinitely.
Contract for an indefinite period:
Its duration is not determined. The worker may terminate it with written notice of no less than 30 days in advance, so that the employer can replace him or her.
Shift work.
Daytime – Nighttime.
Article 170 of the CST (substantive labor code) says that the parties can stipulate uniform salaries for day and night shifts. The 35% surcharge for work at night does not apply. If there are overtime hours, a 25% surcharge is paid. It requires authorization from the Ministry of Labor and its term is for six months, extendable for another six months (decree 2652 of 1965).
Law 50 of 1990 or labor reform, says that for new companies that are established after January 1, 1991, successive work shifts can be temporarily or permanently agreed upon so that they work every day of the week as long as the shift does not exceed 6 hours per day and 36 hours per week. There is no room for nighttime, Sunday or holiday surcharges, only salary is accrued for the ordinary day and for resting one day a week.
Labor and Benefit Rights
Salary, overtime, nighttime, Sunday, holiday, compensatory surcharges, social security, vacations, allowances, family allowance, transportation assistance, funeral expenses, severance pay, interest, service premium twice a year. What they achieve in collective agreements and collective agreements.
Official Sector Working Day
Decree 1042 of 1978. The working day in the official sector is imposed by law for public employees and is a matter of negotiation for official workers.
Ordinary day:
It corresponds to 44 hours a week, which is the same maximum day, the maximum limit of eight hours a day disappears.
Ordinary night shift:
It is from 6 pm to 6 am and a surcharge of 35% must be paid on the value of each hour.
Ordinary daytime shift:
It runs from 6 a.m. to 6 p.m.
Mixed days:
They include daytime hours and nighttime hours. The part of the day that corresponds to night hours, the 35% surcharge is paid or it may be compensated in money.
Sundays and Holidays:
You can work exceptionally or regularly.
When it is usual, you pay: 200% surcharge + one compensatory day + ordinary salary; In total it would be paid four times, but we must keep in mind that the compensatory day cannot be paid in money, it must be enjoyed.
Private Sector Working Day
Ordinary day:
It is the one agreed upon by the parties or the legal maximum.
Maximum day:
Eight hours a day, 48 hours a week.
Supplementary work:
Overtime hours exceed the ordinary working day and in any case exceed the legal maximum.
Day – night work:
Daytime, 6 am to 6 pm Nighttime, 6 pm to 6 am
Work without continuity solution:
Hours per day can be increased, but cannot exceed 56 hours per week.
Sunday and holiday work:
It is remunerated with a 100% surcharge on the ordinary salary in proportion to the hours worked plus a compensatory rest plus ordinary salary. The day of compensatory rest does not give rise to the payment of any additional sum, that is, it does not constitute a fourth salary, what is transferred is the rest that had to be enjoyed on a Sunday or holiday to a business day the following week.
Bibliography
• Younes Moreno D. Administrative labor law, Editorial Temis, 1998.
• Labor record of the Public Service, Benefit Card of the Public Service, Legal concepts of the administrative department of the Public Service.
• Law 6 of 1945, Decree 1048 of 1978, Decree 1045 of 1978, Decree 2363 and 3743 of 1950, Law 50 of 1990, Law 100 of 1993, Law 80 of 1993, Law 755 of 2002.