Our partner Jorge Arredondo talked to Diario Financiero about the bill that incorporates interpretative rules to the 40-hour law regarding the way in which the reduction of working hours should be applied.
The proposal seeks to establish, by law, the interpretation given by the DT regarding the way in which the reduction of working hours should be applied and which prevented the daily minutes formula.
An intense debate was triggered among lawyers by the miscellaneous bill that the Executive submitted a few days ago to the Chamber of Deputies, which modifies different legal bodies in order to simplify regulations to promote economic activity.
The proposal submitted by the Ministry of Finance not only covers customs, tax and housing permit issues, but also incorporates interpretative norms to the 40-hour law, which aroused alerts among labor experts.
Minutes or hours per day
Last April, when the working day was to be reduced from 45 to 44 hours per week, several workers denounced that in their jobs the first hour of reduction would be distributed in minutes per day. In other words, if the workweek was five days, the reduction would be 12 minutes per day.
A situation that led the Labor Directorate (DT) to issue an opinion in which it pointed out that, in the event that there is no agreement between the parties to define the reduction formula, the employer must -in the event that the working day is distributed in five days-, decrease one hour each day, preventing the possibility of subdividing in daily minutes.
This is precisely the issue that is echoed in the modification included in the miscellaneous Treasury bill, since the proposal seeks the understanding that the expression “proportionally” of the third transitory article of the law n°21.561 (of 40 hours), points to the fact that the reduction of five hours per week to reach 40 hours per week must be distributed proportionally in each day of the working day.
“In order to gradually comply with the new limits of the forty-hour workweek established in the Labor Code, in the absence of agreement between the parties or trade union organizations on the distribution of such reduction (…) the five hours of reduction necessary to reach the forty-hour workweek must be distributed proportionally on each day of the five or six-day workweek established in the labor contract”, the proposal reads.
The alerts
For Jorge Arredondo, director of AZ‘s labor group, the proposal implies several things. As a first point, he pointed out that it clarifies that the agreement to reduce working hours can be made both with the workers and with the union organizations. “There were some doubts as to whether union consent was required”, Arredondo said.
Regarding the modification on proportionality, Arredondo said that the legislative proposal “makes it clear that this ruling, which came out overnight, had no basis in the law”.
For the partner of Prieto Abogados, Cristóbal Raby, the proposed change “does not correspond to an interpretative norm, but rather to a modification of the third transitory article of the 40-hour law, with the purpose of surreptitiously supporting the position adopted by the Labor Director, which only had a political and not a technical motivation”. The specialist added that it is not understood that a modification of this nature is contemplated as part of a bill whose purpose is “regulatory simplification and promotion of economic activity. This sounds more like an intention to make this modification go unnoticed”.
A similar reading was given by Ignacia López, partner at Cariola Díez Pérez-Cotapos, for whom this modification “arises after the questioned opinion of the Labor Directorate in which it interpreted the rule contained in the law in a different way to its literal wording, generating a wide questioning and claims in courts, many of which have dismissed the interpretation of the Labor Directorate for departing from the legal text”.
Carlos Gutiérrez, partner of GNP Canales Abogados, agreed with this position: “What was urgent was not to clarify this point, but to address gaps such as the imputability of the payment, an issue that generates uncertainty and that, if the current interpretation of the TD is maintained, could have a direct impact on productivity and employment stability”.
On the other side, for Wendoling Silva, partner of asesoriaslaborales.cl, this is a necessary change. “What this shows me is that they want to transform the interpretative opinion of the TD into law”, she said, and added that this is valued, since ”it gives certainty, it validates the interpretation of the TD which, in my opinion, is what it should have been in terms of the history of the law and the legislator’s intention. This gives certainty, also thinking that in 2026 there will be a reduction of two hours, much more significant. This gives clarity to the workers.”
