Contrato Administrativo de Prestación de Servicios a la Luz del Principio de Primacía de la Realidad Sobre las Formalidades

Abstract

In the Colombian public administration, the employment relationship of persons with the State is classified into three (3) categories: civil servants, public employees and official workers. Although all have a direct link with the state, they differ in their role and working conditions. Public servants are those who exercise authority with specific responsibilities and are subject to special treatment. They are free to appoint and remove because of the political nature of their posts. Public employees, on the other hand, occupy positions within the administration but not necessarily as authorities. Their duties are described in regulations and are administrative in nature, so they are considered careers. Finally, official workers do not exercise authority and perform tasks that could be performed by individuals, such as construction activities. They are linked to the state by an employment contract and follow the common labor regime, although with some public sector specificities. In addition to these categories, there is the administrative contract for the provision of services (CAPS), which allows state entities to hire people for tasks related to administration, provided that they are not permanent and require specialized expertise. This type of contract does not give rise to an employment relationship or social benefits. The administrative contract for the provision of services establishes obligations and rights to ensure that the services are provided properly, on a temporary and non-subordinate basis. However, its application faces challenges in the recognition of labor rights as they are often used to conceal real employment relationships. This leads to a situation where the person hired is in a subordinated relationship, which would lead to the application of the constitutional principle of the primacy of reality, which seeks to ensure protection of labor rights, The contract is concluded by means of a declaration of the contract