The Constitutional Court through Writ for Protection of Fundamental Rights 881 of 2012 established that a person linked through an apprenticeship agreement, who had suffered an accident in development of his/her agreement, was entitled to the reinforced occupational stability guarantee.
¿What is the apprenticeship agreement?
Article 30 of Law 789 of 2002 defined the apprenticeship agreement as a special form within the Labor Law, through which an individual develops practical theoretical formation in an authorized entity and in exchange a sponsor enterprise grants the funds to acquire methodic and complete professional formation required for the profession, activity or occupation and this implies to the performance within the administrative, business operative or financial management within the ordinary course of the enterprise activities, for any determined time not exceeding two (2) years.
¿Which is the remuneration in an apprenticeship agreement?
The remuneration in this type of agreement is called maintenance support, which may not be deemed as salary. The minimum amount for the maintenance support, in the teaching phase would be of 50% of a minimum salary and in the practical phase of the agreement of 75% of a minimum salary.
¿What does the Colombian law establish vis-à-vis the reinforced stability of apprentices?
The provisions ruling the apprenticeship agreement does not expressly provide anything regarding the reinforced stability right of apprentices that have suffered a loss in their labor capacity during the practical phase of formation.
¿What does the Constitutional Court establish vis-à-vis the legal vacuum?
The Constitutional Court deemed that this legal vacuum shall be resolved according to article 8 of Law 153 of 1887, pursuant to which “When there is no law exactly applicable to the controversial case, the laws ruling cases or similar matters shall be applied”.
The Court applies the above mentioned provision and assimilates the apprenticeship agreement to the labor agreement since both have common elements, such as the personal rendering of a service, the subordination and the remuneration (called salary in the labor agreement and maintenance support in the apprenticeship agreement).
Consequently, the similarities between both agreements are sufficient reasons to affirm that not existing a law regarding the reinforced stability of apprentices that have lost a percentage of their labor capacity, the laws ruling these situations in the labor agreements shall be applied in an analogous manner.
¿What is reinforced labor stability?
Article 26 of Law 361 of 1997 refers to the reinforced stability as the protection that limited individuals have, due to which they can not be dismissed or their labor agreement terminated by virtue of their limitation, unless there exists authorization from the Ministry of Labor.
¿How does the reinforced stability in the apprenticeship agreements operate?
The mentioned decision ordered for the concrete case, the rehiring of the plaintiff to the company to the position he was occupying, provided his physical disability does not hinder the performance of the activities of the function for which he was hired. If his physical disability would hinder the performance of the entrusted activities, the company shall relocate him in another position compatible with his abilities and in coordination with SENA, offer to him an occupational formation that the actor would require.
This protection shall be enforceable until the Ministry of Labor authorizes the termination of the relationship with the apprentice or until the compliance of the maximum term of duration of the apprenticeship agreements of two (2) years. To calculate this term, the Court only took into account the time of relationship of the apprentice in the practical phase.
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