We invite you to read the column written by our senior associate of Labor Group, Jocelyn Aros, on the 40-hour Law and the question of how does the reduction of the working day operate when the snack is attributable to it?
One year after the entry into force of Law No. 21,561, known as the “40-hour Law”, one of the many questions -even before its entry into force- is related to how the reduction of the maximum weekly working day (now 44 hours) operates in the event that the workers have agreed that the lunch break is imputable to the working day. This is due to the fact that, in such cases, it could – in principle – be understood that they would already have an “effective” working day shorter than the maximum weekly working day. Let us think, for example, of those companies in which, prior to the enactment of the law in question, they had one hour’s lunch break attributable to the 45-hour working day, so that in “practice” these workers already provided services for 40 “effective” hours per week.
Well, we know that the aforementioned law did not introduce changes regarding the snack time, so that under the provisions of Article 34 of the Labor Code, in the ordinary working day there must be an intermediate time for the snack, whose purpose, moreover, is that the worker consumes a moderate meal that contributes to recover his energy and allows him to continue rendering his services in the remainder of the working day, The purpose of this is that the worker consumes a moderate meal that contributes to recover his energy and allows him to continue rendering his services for the remainder of the workday, and therefore, in order to fulfill its purpose, it must be a prudent time to consume light food that allows the worker to recover the energy consumed during the first part of the workday, which means that it must be a reasonable time. Thus, it is expressly established in the aforementioned regulation that “this intermediate period shall not be considered as worked for the purpose of calculating the length of the daily working day”; that is to say, unless otherwise agreed, for the calculation of the maximum weekly working day -currently 44 hours- the snack time should not be counted as part of it, since, as the regulation itself states, such time would not be imputable to the working day.
Now, as has been pointed out, the “40-Hour Law” did not refer mainly to the meal break, except in its sixth transitory article, when it does so with respect to cases in which the meal break is regulated as imputable to the working day, that is, in cases in which it is included to count the weekly maximums, as in the example proposed at the beginning.
In effect, this transitory article established that “in the companies that, at the date of entry into force of the reduction of the working day contemplated in this law, the rest within the working day is imputable to this, the parties must, by mutual agreement, carry out the adjustment to the new working day. In case of disagreement, and when such imputation is contemplated in a collective instrument, the provisions of Articles 325 and 336 of the Labor Code shall not be applicable with respect thereto”.
From the above reading we can conclude that the parties, by mutual agreement, must carry out the adjustment of the working day. However, in a somewhat confusing wording, it then refers to the cases in which such imputation is found in collective bargaining agreements. In such a case, the aforementioned article states that the rule of the ultraactivity of the collective instrument (325 CT) will not be applicable to such imputation, nor will the rule of the minimum floor of the negotiation. In other words, if the collation is imputed to the working day, this imputation will not be included in the individual contracts of the workers and neither will it be a floor, so that the negotiation in this sense will start from zero. In short, at least in the “collective” sphere, if there is no agreement between the parties, it will be understood that the time of collation is no longer imputable to the working day.
The question to be asked then is what happens in cases where the imputation of the collation time to the working day is not established in a collective instrument, but in the individual employment contract. In this case -in principle-, everything would point out that such imputation will not be understood as an acquired right, so that, in practice, if these workers already have an “effective” working day of 44 hours per week, or less, it could be understood that they made the reduction, and therefore they would be complying with the legal requirements.
However, the Labor Directorate, through its labor inspections, as occurred in the Provincial Labor Inspectorate of Los Andes or the Provincial Labor Inspectorate of Malleco Angol, among others, understands that in cases in which the lunch break is attributable to the working day, the parties should agree to reduce it to the legal maximum of 44 hours.
In fact, following a series of audits of the companies, in one of the claims to such fines by a company that had been penalized for not making the reduction, it was stated in case RIT I 11-2024, of the 1st Court of Los Andes, the following: “Seventh: That, as a corollary of the foregoing, the claimant is required to comply with the sixth transitory article of Law 21. 561, since it is a company in which the rest within the workday is attributable to it, so that it should have complied with adjusting the 45-hour workweek to the new workday ordered by Law 21.561, having to do so by mutual agreement with the workers, or in the event of disagreement and in the case contemplated by the same law, with the respective union organization”. In any case, although the court did not share the position of the claimant company, it accepted the claim on “formal” grounds.
In another judgment, in case RIT I 23-2024, issued by the First Civil Court of Angol, the court established the following: “Tenth: That, in view of the foregoing reasons, it must necessarily be concluded that the infringement determined by the inspector at the time has existed, ruling out any possibility of a mistake of fact, which derives from the documentary evidence provided by the parties, which is consistent with the factual assumption that motivated the infringement, since it is absolutely clear that the workers mentioned in the resolution worked in the period audited above the 44-hour ceiling allowed, since their workday was imputed with the collation time, so that it is not effective, as the claimant maintains, that they worked a 42.5-hour workweek between May 6 and May 12, 2024”.
Although there have been no major pronouncements by the courts on the merits of the matter -since in other cases the legal claims have been ruled on rather formal issues-, there is currently no certainty for the companies as to how the cases in which the working day has been agreed within the working week will be resolved. On the one hand, it has been understood that what is relevant will be the “working day actually worked”, however, for the Labor Directorate -through its inspections- what is essential will be the consideration of the working day in its entirety, including the time for snack time, a position that for the moment has been endorsed by some of the country’s courts.
Column written by:
Jocelyn Aros | Senior Associate Labor Group | jaros@az.cl
