Desnaturalización del contrato de prestación de servicios personales en el sector privado

Abstract

In the hiring of personnel in the private sector of work, the contract for the provision of personal services is being used, under the regulation of Law 80 of 1993, with an irregular handling of the hiring where in some cases the existence of a relationship is hidden labor, which is regulated by the Substantive Labor Code, allowing the evasion of the labor rights to which workers who in this case are called contractors, who comply with the elements of a labor relationship such as subordination, Intuito person execution, and payment of a salary, for performing the same tasks as a worker in an employment relationship, relevant to article 23 of the Substantive Labor Code, which allows to materialize the legal presumption that any relationship is subject to a relationship Article 23 of the Substantive Labor Code. The foregoing evidences the denaturalization of the contract for the provision of personal services in an employment relationship, and in order to ensure said statement, the jurisprudence issued by the Labor Cassation Chamber of the Supreme Court of Justice and the Constitutional Court will be analyzed, with the aim of establishing the relevance of the principle of the primacy of reality over formalities, in the declaration of the employment relationship between the parties, by means of the configuration of the reality contract and the elements for its declaration to proceed, the nature of the benefits that are recognized and the responsibility that employers acquire for the irregular handling of hiring, and the procedural and evidentiary budgets in the declaration of the actual contract.