We invite you to read the column written by our senior associate, Jocelyn Aros, on the judicialization of resolutions referring to exceptional working hours.
One of the relevant issues that arose with respect to the so-called “40-hour law” was related to the regulation of requests for exceptional working hours, all in accordance with the provisions of Article 38 of the Labor Code. In fact, the law itself established the obligation to issue a regulation to determine the limits and parameters for the distribution of the exceptional working and rest day systems, as set forth in Decree No. 48 dated April 20, 2024 of the Ministry of Labor and Social Welfare.
However, for some time now, even before the entry into force of this regulation, our labor courts have been hearing a series of legal claims from companies against the Labor Inspectorates for the rejection of requests for authorization and even renewals of exceptional working hours.
Indeed, in a recent judgment, regarding a request for the renewal of a working day that was filed before the administrative entity, the labor court (RIT I 752-2023 of the 1st JLT of Santiago) reproached the Inspection for the lack of grounds for the rejection, given that this exceptional working day had been authorized for at least 10 years for the applicant company, without the labor inspectorate having provided any grounds for its change of criterion either in the decision or in the response to the claim itself, “which breaks the claimant’s legitimate expectation of obtaining a favorable decision from the authority”. Moreover, in the same sentence, the court controverts one of the arguments of the Inspectorate to reject the request of the company referred to the absence of hired workers, indicating in the same sentence, that this means imposing a requirement that is not required by the legislator and that it is even “absurd” because “it would imply hiring people with an ordinary working day and then requiring their subsequent authorization to formulate the request of the administrative body at that time”. Even more so if the same article 38 states that the agreement of the workers “if any” will be required.
In some other cases, judicial claims have been upheld in the case of rejections of inspections for merely formal reasons related to the “lack of substantiation” of the resolutions referring to them. Thus, in a judgment referring to the refusal to renew an exceptional workday, the court states (RIT I 318-2022 of the 1st JLT of Santiago) “it is found that the arguments used by the Labor Directorate in denying the renewal are vague, imprecise, and its reasoning is not sufficient to deny an authorization granted three years earlier in the same circumstances”, and directly ordered the Inspectorate to authorize the renewal in question. In another judgment, however, which also refers to the lack of justification by the Inspection, the court decided to accept the company’s claim, ordering the inspection to annul the resolution, “complying with the due justification” (RIT I 383-2019 of the 2nd JLT of Santiago).
Although the above rulings refer to administrative resolutions issued under the regulations prior to the “40 Hours Law”, and consequently, under the guidelines of Service Order No. 5, it will be particularly relevant to know what will be the position of the Inspections before this type of requests, and along with it, the actions of the companies regarding the possibility of filing a judicial claim against them, to finally submit the resolution of the conflict in the labor courts.
In my opinion, I believe that judicialization is an appropriate tool for the purpose of having a labor court hear both the substance and the formal aspects of the administrative resolutions, considering also how essential it is for the functioning of the organizations.
