A recent ruling addresses the existence of immediate superior supervision of a worker who is sought to be excluded from the workday limit.
Since the entry into force of the 40-hour Law and, in particular, together with the amendments introduced to paragraph 2 of article 22, one of the most recurrent discussions has been when we are dealing with a worker with immediate superior supervision and when we are not.
In this context, on April 7, 2025, the 2nd Civil Court of San Fernando (judgment RIT M-107-2024) provides relevant guidance in this regard.
The case is initiated by the judicial claim that Article 22 of the Labor Code, as well as the Service Order No. 2000-12/2024 of the Labor Directorate, contemplates as an intermediate stage, after being accredited by the inspector as to whether or not it is appropriate to exclude a worker from the workday limit, and before the application of the fine for such infraction.
Specifically, the court analyzed the resolution of the Labor Inspectorate, which concluded that it was inappropriate to exclude laborers or assistants from the workday limit, based on considerations that, given the review made by the court, are contradictory.
In its analysis, the labor court states that the inspection reached its conclusions only in that ‘’It found a generic obligation to comply with instructions given by the employer or its representatives in the RIOHS (Internal Rules of Order, Hygiene and Safety)’’ and that ‘’The deliveries are from Monday to Saturday and it was found that the RIOHS prohibits arriving late, adulterating attendance records or marking a card to a colleague’’.
In the court’s opinion, the general considerations of the Internal Rules of Order, Hygiene and Safety are not in themselves sufficient proof of the existence of immediate superior supervision, since ”the RIOHS is a generic instrument, in the sense that its applicability is with respect to all the employees of a company, Therefore, it will include measures, obligations and prohibitions that, given the nature of certain functions or the particular agreements of the employment contracts, are not susceptible to bind all the members of the company, due to their incompatibility, and the particular agreements of the employment contract should be preferred, given its bilateral nature”.
With this, it concludes that ‘’it does not seem appropriate to base the interpretation of a factual situation on the rules of the internal regulations of Health and Safety Order, whose applicability has not been accredited’’, even considering that ‘’it is not observed how the Respondent reached the conclusion that there was an immediate superior inspection, if the facts found show a different reality’’.
Finally, the court reversed the decision of the Labor Inspectorate, establishing that the workers who were audited were exempt from working hours.
Therefore, the ruling provides relevant considerations that allow to have some more clarity when addressing the issue of the existence – or not – of immediate superior supervision of a worker who is sought to be excluded from the workday limit, leaving aside generic or abstract obligations to focus on the particular situation of the position or specific worker and how in fact he/she performs his/her duties.
For more information on these topics, you can contact our Labor Group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Manuel Sepúlveda | Associate | msepulveda@az.cl
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