El contrato estatal de prestación de servicios y el contrato realidad en Colombia

Abstract

Within the Colombian juridical context, there are several contracting figures, choosing amount them depends on the needs to be supplied by each employer, this means, employment may be formalized by a fixed term employment contract, an open term employment , a contract limited to a specific project or by signing a specific performance contract.

Specific performance contracts are the most common figures within the state administration since these ones have some remarkable features as its autonomy and the contract signor independence for developing the contractual aim under his own criteria, work sources and resources, which allow him to differentiate from a public servant, however, contractors do not usually find substantial differences working on their performances regarding those performing under an employment contract, apart from suffering a discriminatory treatment in detriment of their labor rights.

Keeping all the above mentioned in mind, the request of implementing the primacy of the constitutional principle of reality over formalities claimed by the contractor demands special relevancy. These requests may be known by the Labor Jurisdiction if its contractual aim resembles the performances of an average employee or, the Administrative Contentious Jurisdiction if that contractual aim involves public servants.

After analyzing a great number of sentences dealing with the primacy of the reality principle application over formalities issued by The State Council, the biased application of this principle within the analyzed precedents seems notable, in fact, in the early 90s, with the initial steps of the 1991 Constitution, judgments of this court were clearly characterized by the total non-observance of this principle in its outcomes, resulting in total vulnerability of labor rights of those who considered that the performances of their employment contract gave them the right to claim payment of salaries as well as receiving social security benefits established by the law.

To conclude, this tendency has changed a bit in the current years, The State Council has started, even though with a slow pace, the application of the primacy of the reality principle over formalities in its latest outcomes, never the less, there is a great difference between the outcomes given by the Labor Jurisdiction and those expressed by the Administrative Contentious Jurisdiction as readers will see through the development of this brief academic reflection.