Principio de realidad sobre el contrato de prestación de servicios en el derecho administrativo colombiano.

Abstract

The principle of reality regarding formalities in Administrative Labor Law in Colombia guarantees the protection of workers' labor rights, seeking to avoid situations of precariousness as a consequence of the application of a neoliberal economic model, where profit prevails over the protection and improvement of workers' quality of life. The application that is being given to this concept, which in its correct definition should occur when a person provides services to a state entity as a professional, technician, technologist, or in specific tasks that do not involve a longer execution time and do not have the suitable personnel to perform such functions. However, at present and in the Colombian State, this principle is being given an equivocal application, where contractors are observed performing tasks that should be carried out by permanent employees, thus completely violating their labor and human rights. This is because, under the shield of a service contract, goals are promoted that must be achieved without limits on working hours or the length of the workday, to fulfill contractual obligations. This research was carried out using a qualitative method and a socio-legal perspective, relying on the bibliographic review of primary and secondary sources, technical analysis, and jurisprudence, allowing for the establishment of a normative analysis on the subject. In this way, it can be concluded that the Principle of Reality acts as a tool that protects against abuses by employers, avoiding the use of formalities or fictitious contracts to evade labor obligations or fulfill political commitments. On the contrary, it seeks to guarantee the protection and respect of workers' labor rights. It is important to highlight that in the same vein of protecting workers' rights, state entities can demand the proper execution of the contract's objectives, conduct periodic reviews of the works or services provided, and ensure the quality of the goods or services being contracted.