Jorge Posada of Parra, Rodríguez, Cavelier discusses mandatory steps to be completed before labor related litigation may begin.
In the 1990's Colombian Government policy regarding the judiciary has concentrated around improving the speed with which cases are tried by judges due to the fact that courts are overworked and have a significant backlog of cases. On the labor front, one of the solutions enacted is the use of alternate dispute resolution methods.
Alternate dispute resolution is not a new idea in labor related claims; in Colombia conciliation has been in use since enactment of the Labor Procedure Code of 1948. The procedure then created included pretrial settlement before an administrative authority (labor inspector) and settlement during trial, in a hearing held by the judge. Effects given to conciliatory agreements thus reached were 'res judicata', that is, the same effect a court decision has once there are no more appellate options open to the parties.
Once the trial had begun a special conciliation hearing was the first of a total of six hearings to be held during the trial, although then, and now, at any time during the trial when the parties reach a settlement the may request a 'special conciliation hearing' be held to record the agreement and give it legal effects, as said effects were previously outlined. However, settlement was rarely tried and the settlement hearing in trial became a mere formality, since either one or both parties would fail to go, without suffering adverse consequences. Additionally, a conciliation hearing could not be held when a public entity was party to trial.
With the enactment of Law 23 of 1991 a change began. Under this law the pre-trial conciliation hearing was elevated to a status of condition precedent to trial; that is, if the hearing was not held (by request of the parties), then the matter could not go to trial. Moreover, according to this law, the facts on which the claiming party based their claim would be presumed as true if the other party did not either go to the hearing or adequately justify their non-assistance. Even worse, a presumption of bad faith was created against the employer that did not assist nor justify himself and heavy fines could be assessed upon sentencing.
Current legislation, enacted by law 446 of 1998 and regulated under decrees 1818 and 2511 of the same year, maintains mandatory status of the pretrial hearing, although if the hearing is not held, the judge must now immediately set a date and celebrate the hearing. This is clearly a step in the wrong direction, as it makes not requesting the pretrial hearing totally inconsequential for the party filing suit. Facts on which suit is based are still presumed to be true if the party being sued does not attend the conciliation hearing.
It is worth stating that the presumption created against the party being sued is, in reality, a heavy penalty, since the effect of the presumption is inverting the burden of proof against that party. Hence, defense of the party subject to claim will be more difficult as that party will be specifically charged with proving that the claimants allegations are not true, a task that could easily prove daunting.
The new legislation is on average a step forward. Public entities, that is, government offices, entities, institutions and state owned enterprises, may now be party to settlements, and representatives of those entities must be empowered to reach an agreement. The authorities before which pretrial agreements may be made have been expanded to include private alternate dispute resolution centers, thus reducing workload for labor inspectors and making proceedings easier on both employers and employees.
In closing, we can say that conciliation, or settlement, has become an even more important part of dispute resolution in labor related matters in Colombia. Effects given to a settlement reached in accordance with the law are of particular importance to employers, as certain types of claims may be resolved in a timely, definite and economical manner without creating future liabilities.
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