Extent of Protection
Colombia has a constitutional mandate for guaranteeing equal treatment and pay by protecting against unequal treatment based on gender, race, nationality, religion, opinion or political affiliation (art 13 of the Constitution), which has been confirmed with the ratification of ILO Conventions 100 and 111.
In fact, since 1945, article 143 of the Colombian Labour Code established the “equal remuneration for equal work” principle, which was replaced with the “equal remuneration for work of equal value” principle through Law 1496 of 2011. In addition, Law 1496 created some mechanisms to guarantee equal pay, labour integration between genders, and avoid any form of discrimination. To comply with the regulation, every employer should follow the legal remuneration assessment factors when bargaining about salary with their employees and keep employee records with specific information such as job position, gender, duties, remuneration and type of agreement or contract.
Finally, and particularly regarding the rural sector, Law 731 of 2002 established a special mandate for eliminating gender remuneration inequality in this sector, as well as some concrete actions to achieve it, including, among others, the design of special training and sensibilization programs; the social commitment toward women stamp; and the implementation of a culture of equal labour conditions.
Remedies
Regarding special remedies or penalties for violating the equal pay principles, the employment regulation allows employees to file a special charge before the Ministry of Labour or claim the courts, based on pay or compensation discrimination. If the unequal pay is proven to provoke the demotivation or resignation of the employee, this would constitute grounds for labour harassment claims.
In addition, and even though the employment regulation does not establish a particular remedy for violation of the “equal pay remuneration for work of equal value” principle, through individual complaints before the Courts or even the Ministry of Labour, or by the collective bargaining process, employees could compel the employer to act in accordance with the equal pay principle. Moreover, if the employee could claim and prove a breach of obligation by the employer regarding the record keeping before the Ministry of Labour, the employer might be fined up to 150 monthly minimum wages.
Finally, regarding special penalties for violating the equal pay regulation, the Colombian Criminal Code was modified to include the arbitrary limitation of any right based on racism or discrimination, as a new crime through Law 1482 of 2011, punishable by imprisonment for a term between 12 to 36 months, and a fine between 10 to 15 monthly minimum wages.
Enforcement/Litigation
Despite the lack of a reporting obligation for employers, as well as the fact that most of the salary clauses are protected under confidentiality agreements, a strong judicial precedent relating to equal pay claims has been established by the Supreme Court of Justice. According to the Court, the grounds to assign different salaries to employees in the same position should be based on the quality of the work, rather than on merely academic degrees or job seniority. Once the existence of work of equal value is evidenced in a claim, the employer must credit the existence of objective factors to justify payment differences.
Furthermore, the equal pay principle could be protected through constitutional actions, as a transitory measure (called in Spanish “acciones de tutela”), and collective agreements.
Other Requirements
As mentioned before, every employer should keep employee records specially made for gender equality purposes, and present them to the Inspector of the Ministry of Labour for assessment while carrying out gender audit services, along with evidence of every practice or procedure implemented in order to guarantee equal pay. However, there is no obligation to periodically share this information with the authorities.
