FAQ: Registration of Books of Commerce Before the Chamber of Commerce

In accordance with article 19 of the Colombian Commercial Code, all merchants must be registered in the commercial registry and must register all acts, books and documents required by law. Specifically, with respect to commercial books, article 28 of the Colombian Commercial Code establishes that the Partners’ or Shareholders’ Registration Book and the Book of Minutes of the Meetings of Shareholders or Partners must be registered. In this regard, we answer some of the most frequently asked questions: 

1.Which are the books that must be registered and what do they consist of?

The books that must be registered are two: (i) the Partners’ or Shareholders’ Registration Book and (ii) Book of Minutes of the Meetings of Shareholders or Partners. In these books, as the name implies, records must be kept of the shareholders or partners that own the company and the minutes of the meetings that these partners or shareholders hold to discuss and make decisions regarding company matters.

In accordance with article 56 of the Colombian Commercial Code, these books may be of removable sheets or formed by a continuous series of cards, as long as the sheets or cards are numbered and allow their filing in order. They may also be kept in electronic files where the inalterability, integrity, security and conservation of information must be guaranteed.

2. Where and by whom must this registration be done?

The application for registration must be submitted by the legal representative, or a third party who has a validly granted power-of-attorney to perform this registration, before the Chamber of Commerce in which the company is registered.

3. When and how can this registration be made?

The registration of these books can be requested at any time and must be filed at the offices of the Chamber of Commerce in which the company is registered. However, in case of electronic books, registration must be done annually and can be done virtually. 

4. Where can these books be purchased? 

As for the acquisition of the Partners’ or Shareholders’ Registration Book and the Book of Minutes of the Meetings of Shareholders or Partners, there are two options:

  • They can be purchased in stationery stores where different options are offered, varying in the orientation of the sheets, the number of folios or pages available, among others.
  • It is usual for the Chambers of Commerce to provide the service of selling printed and coded sheets, allowing merchants to acquire only the amount of sheets they consider necessary and facilitating the process of numbering and coding the sheets, since it will be taken care of by the organization. Thus, it would not be necessary to buy a complete book but simply the amount of sheets that are required, which must be kept in folders that allow their proper storage and custody.

5. How should books be submitted for registration?

Merchants must submit blank books, that is, without any information, except for the consecutive numbering of the sheets with the selected code, as explained in the following section, and the name of the book. Likewise, the covers of the books must be labeled with the name of the book and the name of the company.

With respect to electronic books, it is enough to submit the virtual application for registration, filling out the information requested by the corresponding Chamber of Commerce, which will be responsible for reviewing and deciding on the application.

6. What documents must be submitted during this process? 

A written request executed by the legal representative must be submitted, specifying (i) the date of the application, (ii) the company name, (iii) the tax number of the company, (iv) the registration number, (v) the name or destination of the books (book of partners, shareholders, or minutes), (vi) the amount of useable sheets in each book, (vii) the consecutive numbering and (viii) the numbering range. In case the book has removable sheets, the code that will identify them must be indicated; this code must be between one (1) and six (6) characters and may be made up of letters and / or numbers. This code must be included in each of the sheets of the corresponding book. As an example, for the shareholders’ book, the code “SHA” may be chosen and for the book of minutes of meetings of shareholders or partners, the code “MIN”. In any case, any other code that complies with the aforementioned character limit and consists solely of letters and numbers may be chosen. 

Nonetheless, it is usual for the Chambers of Commerce to have a pre-established form that will facilitate this task because it will only be necessary to fill in the blanks with the information required by the Chamber. This form must be executed by the legal representative. Additionally, in the event that the person who is going to file the application is not the legal representative, a limited power-of-attorney by which they are granted the authority to file said application must also be presented, along with a copy of their ID. 

7. What should be done in case the book runs out of sheets or is lost?

In case the company already has a registered book but all the sheets have been used, a new book must be purchased and a new application for registration must be submitted. Thus, it is necessary to complete the registration application form again and submit, along with the new book, the previous completed book or a certificate issued by the statutory auditor or the public accountant of the company informing of the completion of the book or that it is about to be completed.

On the other hand, in case the book has been lost or destroyed, a new book must also be acquired and the registration application form must be completed again. Additionally, a copy of the complaint regarding the loss or destruction of the book, filed before the competent authorities, must be attached, which must include the company name, the book name and the Chamber of Commerce registration number of said book.

In case you have doubts about this or any other procedure before the Chamber of Commerce, do not hesitate to contact us. 

New Regulation for Remote Work Contracts in Colombia

On April 9, through Decree 555 of 2022, the Colombian Ministry of Labor regulated the conditions that must be met by employers, workers and workers’ compensation administrators (ARL, by its Spanish acronym), for cases in which workers provide their services remotely. This type of work is known as remote work and is a form of performance of employment contracts in which information and communications technologies or similar means are used. In other words, employers and workers do not interact physically, since all the stages of the contract are performed virtually [1]. Therefore, companies that want to implement remote work must have a procedure that recognizes and respects the rights and guarantees of workers, as well as promote the appropriate use of information and communication technologies in a way that eliminates barriers that limit the performance of remote work. In this regard, this decree establishes new obligations for  remote employers, who must comply with  sending of a copy of the remote employment contract to the ARL along with: (i) the information of the place chosen for the provision of the service, (ii) any changes to this, (iii)  weekly work schedule, (iv) the occupational risk classification corresponding to the tasks to be performed and (v) the occupational risk classification corresponding to the company or workplace, as well as filling out the form required by the ARL. Additionally, the methodology to identify, evaluate, assess and control dangers and risks to workers of the company must include the category of remote work in order to adopt all necessary actions in the annual Work Plan of the Occupational Health and Safety Management System (SG-SST, by its Spanish acronym).

Likewise, employers must inform workers about the available means of communication to report any updates related to the performance of remote work, work accidents and occupational diseases. Similarly, every employer must order periodic medical evaluations to identify the health conditions of remote workers. Finally, employers must provide workers with safe work equipment and adequate means of protection, and virtually verify the health and safety conditions of the place where workers will perform their functions.

With respect to remote employment contracts, this decree establishes that they must contain the activities that workers must perform and the physical conditions of the workplace. In addition, the work tools that will be delivered to remote workers for the effective performance of their functions must be included in the contracts, as well as the liability for the custody of these items, the way in which these items will be delivered to and returned by workers, and the computer security measures that remote workers must know and comply with. Furthermore, the value of the assistance fee that employers must pay to compensate for the cost of energy, Internet and / or telephone services used in the provision of the services by the worker must be specified, which may not be lower than the value of the transportation aid established by the National Government. Employers and workers may also agree on a monthly compensation value for the use of work tools owned by the worker.

Moreover, employers may require remote workers, in exceptional circumstances, to attend the employer’s office or workplace in-person. These exceptional circumstances must be included in the employment contract. In addition, flexible schedules may be agreed upon by the parties and employers may implement corresponding technological mechanisms to ensure and verify the effective compliance with the schedule, without prejudice to workers’ right to disconnect from work.

In case you have doubts regarding these obligations or any labor issue, do not hesitate to contact us so that we can provide you with the legal counsel you need.

[1] Article 3rd, Law 2121 of 2021.

What Are “Wage-Exclusion Agreements” and What Are Their Limits?

In accordance with article 127 of the Colombian Labor Code, anything workers receive as a direct compensation for the service they provide must be considered wages, regardless of whether it is paid in money or in-kind, or the type or name given to this payment. However, it is possible for employers to grant other occasional sums to workers in order to achieve the full performance of their duties, without seeking to grant benefits to workers or grow their wealth. Likewise, it is possible for the parties to expressly agree to grant certain benefits or aids to workers, either regularly or occasional, without these being considered as part of their salary, since these sums are not intended to remunerate the work they perform; this is known as a “Wage-Exclusion Agreement” and these payments may not exceed 40% of the total remuneration received by workers[1].

With respect to these agreements, the Colombian Supreme Court of Justice, in judgment SL5159-2018, and reiterated in judgment SL5146-2020, recalled that these can only apply to those payments that, despite not directly compensating work, in the absence of a previous wage-exclusion agreement, could generate discussions and confusion regarding their nature, that is, whether they constitute salary or not. Such is the case of extralegal bonuses for food, room or clothing, holidays or Christmas, among others. Thus, employers will have the burden of demonstrating that these payments, despite being regular and/or habitual, do not have the direct purpose of remunerating the services of workers or growing their wealth, but instead have a different objective, such as guaranteeing the fulfillment of tasks or covering certain needs. This is necessary because employers do not include these sums in the payment of social security contributions (pension, health, workers’ compensation administrators) or social benefits (legal bonuses, severance and its interests, legally mandated work uniforms), since the basis for calculating these payments is solely the sum that does constitute wages. Therefore, in the event that the existence of a duly executed wage-exclusion agreement cannot be proved, the employer will be obliged to pay workers, as compensation, a sum equal to the last daily wage for each day of delay in the payments of these sums (contributions and social benefits), in accordance with the provisions of article 65 of the Colombian Labor Code.

Consequently, on March 23, the Colombian Supreme Court of Justice analyzed an appeal against a judgment that declared two (2) companies jointly and severally liable, for an ineffective wage-exclusion agreement. In this regard, the Court argued that even though the worker freely agreed to execute this agreement, it is not possible to exclude from her salary any amount that, by its nature, essence and purpose constitutes salary, more so if the employer cannot demonstrate that these payments do not have the purpose of remunerating the services of the worker. In other words, the employer, through a wage-exclusion agreement, wanted to exclude sums that were constitutive of salary since they compensated the work performed by the worker. Additionally, the Court recalled that, in these cases workers must file their claim within 24 months following the termination of the labor agreement. Otherwise, workers are no entitled to the compensation established in article 65 of the Colombian Labor but only default interest accrued from the termination of the contract.

For the specific case, the worker had worked with a company for 13 years under an open-ended labor contract, after which she was notified that the employer would be replaced by another company. However, before this replacement was made, the worker executed an additional clause to the contract through which she would be granted a monthly remuneration plus a “non-salary benefit” that would not be included in the basis for calculating social benefits and contributions to the social security system. This clause, despite the employer substitution, was in force until the moment of termination of the contract. In this regard, the Court recalled that article 69, paragraph 1, of the Colombian Labor Code establishes that previous and current employers are jointly and severally liable for any obligations that at the date of substitution are enforceable against the previous employer. It is for this reason that the determination made by the court of appeals to declare both companies jointly and severally liable and order them to pay the sums owed along with the default interest, was correct, which is why the Court decided to confirm the ruling.

At BéndiksenLaw we can help you draft, review and modify the employment contracts of your workers to ensure full compliance with the regulatory provisions on labor matters. We can also settle any of your doubts regarding this or any other labor issue. Contact us.

[1] Council of State, Fourth Section, File No. 05001-23-33-000-2016-02496-01(25185) of December 9, 2021, C.P. Dr. Milton Chaves García.

New Measures to Prevent the Spread of COVID-19 in Workplaces

Due to the high risk of contagion for workers attending their workplace in-person, the Colombian Government has issued new measures that employers must implement for the management and mitigation of the risk of contracting COVID-19 in work environments. Thus, Resolution 350 of 2022 established that, in general, measures such as self-care, mental health care, hand washing and hygiene, physical distancing, the use of masks, adequate ventilation, cleaning and disinfection, waste management, and risk and healthcare communication must be implemented.

Additionally, and specially for the labor sector, through this resolution, special measures are dictated, such as: (i) updating  the Occupational Health and Safety Management System (SG-SST, by its Spanish acronym) with respect to the measures aimed at preventing the risk of contracting COVID-19 in the workplace; (ii) the implementation of a communication channel between the employer, healthcare entities (EPS, by its Spanish acronym), workers’ compensation administrators (ARL, by its Spanish acronym) and workers so that suspicions of contraction or any situation that jeopardizes compliance with biosecurity protocols at work can be reported, (iii) the dissemination of information related to alarm symptoms and self-care; and, (iv) compliance, in all cases, with the recommendations of the health authorities regarding the prevention of contracting COVID-19.

Regarding the obligation to update the SG-SST, the first (1) of April of this year, the Ministries of Health and Social Protection and Labor issued a memorandum in which it was expanded, establishing that employers must implement measures to identify the most vulnerable individuals who are most likely to suffer health complications. Likewise, it is necessary to implement measures that allow detecting possible outbreaks of COVID-19 within the company in a timely manner, in order to quickly generate the alerts and responses that are required to prevent and control these outbreaks. Additionally, the receipt of information regarding vaccination status form workers and contractors who completely or partially work in-person must be ensured in order to estimate the risk of contraction within the company and to create a risk map. Based on this information, employers may reorganize personnel if they consider it necessary to mitigate the risk of contagion, also being able to turn to the workers’ compensation administrators (ARL) to receive technical assistance in this regard.

If you have any doubts regarding compliance with these instructions or any other matter that affects your company, do not hesitate to contact us.  

Renew the “RUP” of your Company Before the Deadline

All individuals or corporations, whether Colombian or foreign with domicile or a branch office in Colombia, who are interested in entering into contracts with Colombian public entities, must register, at any time, in the Registry of Proponents (“RUP”, by its Spanish acronym) of the Business Registry (“RUES”, by its Spanish acronym) of the Chamber of Commerce of their main domicile, in accordance with the provisions of Decree 19 of 2012. This registry contains all the information related to the experience, legal, financial and organizational capacity of the individual or corporation, their classification according to the goods and services they offer and the fines or ineligibilities that have been imposed on them during the performance of other contracts.

 However, the information contained in this registry must be renewed annually. Consequently, persons registered in the RUP must submit the information to renew their registration no later than the fifth business day of April of each year, otherwise the effects of the RUP will cease. That is, the registration will be automatically cancelled in case of non-renewal. The foregoing does not prevent the information recorded regarding their experience and legal capacity from being updated at any time. To carry out this renewal, the RUES form must be completed and filed together with its annex 2, which corresponds to the RUP, and the supporting documents before the Chamber of Commerce and, subsequently, payment must be made of the corresponding fee.

Bear in mind that the law establishes certain exceptions with respect to the obligation to be registered in the RUP to enter into contracts with Colombian public entities, such as cases of direct contracting, agreements for the provision of health services, minimum value agreements, alienation of State property,  agreements whose purpose is the acquisition of products of agricultural origin or destination through commodity exchanges, acts and agreements whose purpose is the commercial and industrial activities inherent to industrial and commercial State companies  and  mixed ownership companies, and  concession agreements of any kind.

If you have doubts regarding the procedure you must follow or the documents that you must present or fill out to carry out the renewal, registration or modification of the RUP, do not hesitate to contact us.