On April 11, the Chamber of Deputies approved the bill to reduce the maximum ordinary working week to 40 hours per week, finalizing its processing in both chambers, and being ready to be enacted and published in the Official Gazette, in order to enter into force.
This new law incorporates, in addition to the reduction of working hours, a series of other reforms to the Labor Code aimed at achieving greater flexibility in working hours.
The original bill, presented in 2017 by then Deputy Camila Vallejo, initially aimed solely at lowering the maximum ordinary weekly working day from 45 to 40 hours.
However, during its processing, multiple modifications were made to the text. Among them, those that addressed the complications of harmonizing the reduction of the working week with other provisions of the Labor Code, and then added provisions aimed at achieving greater flexibility in the distribution of working time.
This new regulation also provides that, in some cases, the entry into force of certain provisions will be immediate. In the case of more complex provisions, it will be done progressively.
In turn, it implies a regulatory change of great relevance that, although it presents challenges and complexities in its implementation, it incorporates mechanisms in the Labor Code that will allow greater flexibility in the administration of working time, as the most important element.
The following is an analysis of the main aspects of this key reform:
1. Reduction and distribution of the working day.
The main change brought about by the new law is the reduction of the ordinary working day, which now may not exceed 40 hours per week.
This change will take effect gradually. In the first year it will be reduced to 44 hours, in the third year to 42 hours, and in the fifth year to 40 hours. This will be counted from the publication of the law in the Official Gazette.
As regards part-time work, it is provided that it may not exceed 30 hours per week. This provision will become effective one year after the publication of the law in the Official Gazette.
In addition, it is established that the working week may not be distributed in more than 6 or less than 4 days. In addition, it is established that the ordinary working day may not exceed 10 hours per day, regardless of the overtime that may be agreed in accordance with the general rules.
This provision will become effective five years after the publication of the law in the Official Gazette.
2. Average of 40 hours per week in a 4-week cycle.
A new article 22 bis is incorporated to the Labor Code, which contemplates the possibility that the employer and the employee agree to distribute a flexible working day based on a weekly average of 40 hours in a cycle of up to 4 weeks. In this case, the workday may be extended up to a maximum of 45 hours per week, which may be extended for up to a maximum of two weeks within the respective cycle. However, through collective bargaining or special agreements with unions, a maximum of up to 52 hours may be agreed during these two weeks of the cycle.
This rule is complemented by the provisions of the amendment to Article 31 of the Labor Code, which provides that in no case may the sum of ordinary and extraordinary working hours exceed 52 hours per week.
The parties must establish by mutual agreement a schedule for the daily and weekly distribution of working hours in the cycle. This includes the possibility of agreeing on different alternatives for the distribution of working hours in a cycle, and the employer must inform the employee of the alternative to be applied in the following cycle at least one week in advance.
If the employee to whom this system is applied is a unionized worker, the prior agreement of the union organization is required.
This change will take effect gradually. Thus, this average will be reduced to 44 hours in the first year, 42 in the third year and 40 in the fifth year, counted from the publication of the Law in the Official Gazette.
3. Workers excluded from the limitation of working hours
With respect to workers excluded from the working day limit in the second paragraph of Article 22 of the Labor Code ("managers, administrators, attorneys-in-fact with administrative powers and all those who work without immediate superior supervision due to the nature of the work performed"), a new provision was incorporated in the event of a dispute over the application of this exclusion.
Thus, if there is a dispute as to whether or not the provisions of the second paragraph of Article 22 apply to a particular worker, and at the request of any of the parties, the Labor Inspector will decide whether the work in question is in any of the situations described in this provision. An appeal against the resolution of the Labor Inspector may be filed before the Labor Judge, within a period of 5 days, who shall resolve in sole instance, without the form of a trial, hearing the parties.
This provision will become effective one year after the publication of the law in the Official Gazette.
4. Compensation of hours.
The possibility is established for the parties to agree in writing on the compensation of overtime for additional holidays, up to a total of 5 working days of rest per year, which must be taken by the employee within the 6 months following the cycle in which the overtime originated.
To do so, the employee must give 48 hours' notice to the employer. If the employee does not request them in the indicated opportunity, his remuneration shall be paid within the respective period.
For the purposes of this compensation, each hour of overtime shall correspond to one and a half hours of holiday.
If upon termination of the employment relationship there are overtime hours pending compensation, this will be done in accordance with the general rules set forth in Article 73 of the Labor Code.
This provision will become effective one year after the publication of the law in the Official Gazette.
5. Attendance record.
This new law completely modifies Article 33 of the Labor Code, which refers to the employer's duty to monitor employee attendance.
It is provided that the employer may comply with the duty of attendance control and determination of ordinary or extraordinary working hours. This may be done by means of an attendance book, a time clock or an electronic recording system.
These electronic record keeping systems will be established and regulated by a resolution of the Director of Labor published in the Official Gazette. This will establish and regulate the conditions and requirements that must be met and must be uniform for the same activity, being able to pronounce at the request of a party if a certain system complies with the conditions established in the referred resolution.
This provision will become effective one year after the publication of the law in the Official Gazette.
6. Special and exceptional days.
In the case of employees of gaming casinos, hotels, pubs, discotheques, restaurants, clubs, bars and similar and of tourism operators, in relation to the rest on Sundays and the current limit of a maximum of 3 consecutive Sundays, the new regulation allows that, once a year, 8 Sundays or, on 3 discontinuous occasions a year, 4 Sundays, may be considered consecutively.
This provision will become effective one year after the publication of the Law in the Official Gazette.
The new law establishes a 30-day term for the Director of Labor to issue the resolution resolving the request for an exceptional workday.
The new regulation allows the authorization of exceptional systems whose average weekly working hours, in the respective cycle, do not exceed 42 hours weekly average. In these cases, the workers will be entitled to additional annual rest days corresponding to the difference that occurs in each case with the ordinary average workday, which, by agreement between the parties, may be compensated in money. This provision will enter into force five years after the publication of the Law in the Official Gazette.
Finally, it is established that a regulation issued by the Ministry of Labor and Social Welfare, after a report from the Labor Directorate, will determine the limits and parameters for the distribution of exceptional working hours and rest periods.
7. Application of the reduction of the working day in special employment contracts.
a. Drivers and auxiliaries of interurban collective locomotion and interurban passenger transport services and other similar.
The current provisions are adjusted to an ordinary workweek of 40 hours.
In the case of drivers of interurban land freight vehicles, 40 hours average monthly computation or 180 hours monthly computation with an additional annual rest of 6 days.
In the case of railroad crews, the workday may not exceed 40 hours per week on a monthly average basis.
These provisions will enter into force five years after the publication of the Law in the Official Gazette.
b. Restaurant, hotel or club workers who directly serve the public.
The current provisions are adjusted to an ordinary workweek of 40 hours.
This change will take effect gradually. Thus, it will be reduced to 44 hours in the first year, 42 hours in the third year and 40 hours in the fifth year, counted from the publication of the Law in the Official Gazette.
c. Agricultural workers.
The current provisions are adjusted to an ordinary workweek of 40 hours, establishing that the annual average of working hours shall not exceed 6 hours and 40 minutes per day.
This provision will become effective five years after the publication of the Law in the Official Gazette.
d. On-board workers or seafarers and casual dockworkers.
The provisions in force for this activity are adapted to an ordinary working week of 40 hours.
This change will take effect gradually. Thus, it will be reduced to 44 hours in the first year, 42 hours in the third year and 40 hours in the fifth year, counted from the publication of the Law in the Official Gazette.
e. Workers in private homes.
The current provisions are adjusted to an ordinary workweek of 40 hours.
This change will take effect gradually. Thus, it will be reduced to 44 hours in the first year, 42 hours in the third year and 40 hours in the fifth year, counted from the publication of the Law in the Official Gazette.
8. Other provisions.
a. The new Article 27 of the Labor Code establishes the right to a two-hour band in favor of workers who are mothers and fathers of children up to 12 years of age, and of other workers who have the personal care of such children, within which they may anticipate or delay the beginning of their work by up to one hour, which will also determine the time of departure at the end of their workday. The worker must accompany the birth certificate or sentence that delivers the care of the minor.
The employer may only refuse to establish this time band, when the company operates on a schedule that does not allow to anticipate or postpone the working day due to the nature of the services rendered by the worker - such as, for example, in customer service functions, in which the services of other workers are necessary; in shift work; emergency services; guards or similar - as long as they require that the worker is actually at his post at the specific time indicated in his contract. In case of controversy, and at the request of any of the parties, the Labor Inspector will decide if that particular work is in any of the situations described.
If both parents are workers, either parent may make use of this right, at the mother's option.
This provision will become effective one year after the publication of the Law in the Official Gazette.
This legal alert was prepared by the Bofill Mir Abogados labor team for informational purposes and should not be considered legal advice.
