Government Bill excludes unions from agreement to make application of the 40-Hour Workweek more flexible over 16 weeks

The initiative seeking to reshape how the 40-hour workweek is applied began its legislative process in the Chamber of Deputies’ Labor Committee. The bill aims to refine the working-time adaptability mechanisms introduced under the 40-hour law.

At its core, the bill amends the provisions governing agreements to distribute the ordinary workday based on weekly averages of forty hours. As a general rule, it extends the maximum reference period from 4 to 16 weeks, while keeping the maximum cap of forty-five ordinary hours per week unchanged.

Likewise, for tourism and related activities — such as hospitality, food service, entertainment and tour operators — whose activity is characterized by significant and largely predictable seasonal fluctuations, the bill establishes a special regime extending that period to up to 52 weeks, while also keeping the maximum cap of forty-five ordinary hours per week unchanged.

In both cases, the average ordinary workday must comply with the applicable legal limit, a written agreement must be signed, and it must include an advance distribution calendar, safeguarding workers’ certainty regarding how their working hours are organized.

To determine how the workday will be distributed based on weekly averages, the parties must jointly agree on a calendar setting out the daily and weekly distribution of working hours within the cycle. That said, the parties may agree on different distribution alternatives for the workday within a given cycle. No later than one week before the start of each month within the relevant cycle, the employer must notify the employee of the distribution alternative that will apply during that month.

Within each cycle, the weekly workday may not exceed forty ordinary hours in more than half of the weeks that make up the respective cycle.

Experts’ Views

Rodrigo Ugarte, partner at the Aninat firm, adds that “the individual agreement makes the mechanism genuinely workable, without altering the protective limits set out in the legislation”.

Along these lines, the expert stresses that “the proposed regulation also provides greater legal certainty, since it establishes a uniform mechanism for all companies that choose to implement this arrangement, preventing its use from depending on the existence of a union. At first glance, I don’t see how the absence of union involvement would affect the legitimacy of the proposed mechanism”.

Read the full article published in La Tercera.