Publications

Labour

Labor Department publishes ruling on the effects on the position of union leader at the time of registration of candidates for the Constitutional Convention.

On January 11, 2021, the Labor Department published its statement No. 050/002, which pronounces on the effects that occur in the position of union leader, at the time of registering a candidacy for the Constitutional Convention. Specifically, this opinion states the following:

1. When a union leader registers a candidacy for the Constitutional Convention, his functions are suspended, but this does not imply the loss of union privileges.

2. The above mentioned suspension, in case of being elected, will last for the entire period of the Convention, and, in case of not being elected, the suspension will be maintained until the proclamation of the members of the Convention.

3. In the event that his union mandate ends after the end of his participation in the constitutional process, that leader shall return to his functions for the time remaining, maintaining his immunity for the aforementioned period and for up to 6 months of cessation in his position.

4. If the term of the union mandate ends during the period of candidacy to the Convention or during the exercise of the functions as a constituent, the union director will have a jurisdiction for 6 months from the moment he ceases to be a union leader.

5. It will be the union organization by means of the established in its statutes that will be able to determine the way to replace that leader registered to integrate the Constituent Convention.

6. If the suspension of the functions of the union director produces an impediment in the functioning of the board, a new complementary election must be held to give continuity to the functions of the board while the suspension of functions lasts.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

The Labor Department publishes an official notice on the meaning and scope of the “act or declaration of the competent authority”, for the purpose of accessing additional Unemployment Insurance rotations

On January 6, 2021, the Labor Department published its ruling No. 032/001, which establishes the doctrine regarding the meaning and scope of “act or declaration of competent authority”, for the purpose of accessing additional transfers from the Unemployment Insurance Solidarity Unemployment Fund. Specifically, this opinion states the following:

1. That for purposes of determining whether a particular activity is affected by an “act or declaration of competent authority”, compliance with the requirements regulated in the Employment Protection Act must be met.

2. That the measures provided for in the “Step by Step” Plan, complying with the aforementioned requirements, could constitute an act or declaration of authority that allows the affected workers to access additional transfers from the Unemployment Insurance Solidarity Unemployment Fund.

3. That, the measures contained in Supreme Decree No. 102, as amended by Supreme Decree No. 455, both of the Ministry of the Interior and Public Security, relating to the temporary closure of places authorized for the entry and exit of foreigners, to the extent that they meet the aforementioned requirements, could constitute an act or declaration of authority authorizing the workers affected by the above-mentioned benefits.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Labor Department publishes ruling that reconsiders the doctrine regarding the opportunity to comply with the obligation to hire people with disabilities

On December 30, 2020, the Labor Department published its ruling No. 3376/035, which reconsiders the doctrine regarding the opportunity to comply with the obligation to hire people with disabilities or who are assigned a disability pension. Specifically, this opinion states the following:

1. The fulfillment of this obligation must be accredited by means of electronic communication for the months of the current year, starting in January 2022.

2. The same communication must indicate the alternative measures that comply with the hiring obligation and the justified reasons for it.

3. During the year 2021, compliance with the hiring obligation for the months of the previous calendar year must be accredited. On the other hand, from 2022 onwards, said compliance must be proven for the months of the current year.

4. The workers covered by the Employment Protection Law must be counted for the purposes of determining the total number of workers in the company.

If you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Law is published that extends the scope of application of the labor protection procedure to public officials

On November 9, 2020, Law No. 21.280 was published, a regulation that extends the scope of the labor protection procedure to public officials. Specifically, this law provides for the following:

1. This amendment establishes that the rules applicable to the labor protection procedure are applicable to all workers, including officials of the State Administration, the National Congress and the Judiciary. Also, to the workers of the companies or institutions of the State or of those in which the State has contributions, participation or representation whenever such officials or workers are subject by law to a special statute.

2. It is also stated that the procedure of guardianship will apply to workers who work in the Public Ministry, the Constitutional Tribunal, the Electoral Service and Electoral Justice, the General Comptroller of the Republic, the Central Bank and those who are declared autonomous by their own laws.

3. The law amends the Labor Code by extending the powers of the Labor Department for purposes of inspection and interpretation in the scope of the labor protection procedure.

4. It is established that, in these cases, the payment of the substitutive indemnity of previous notice and the indemnity for years of service will not proceed, with respect to the workers indicated in point 1 and 2 of this presentation, the judge granting instead, an indemnity that will not be less than 6 months nor greater than 11 months of the last monthly remuneration.

5. Finally, in these cases, the law determines that when the judge declares the dismissal to be discriminatory and it is also qualified as serious, the worker may choose between compensation or reinstatement.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

A new law has been published that adjusts the amount of the Minimum Monthly Income, the family and maternal allowance, and the family subsidy.

On November 7, 2020, Law No. 21.283 was published, which readjusts the Minimum Monthly Income, the family and maternal allowance and the family subsidy. In the core and related to the Minimum Monthly Income, this law provides for the following:

1. As of September 1, 2020, the Minimum Monthly Income is increased to $326,500, for workers between 18 and 65 years old.

2. As of September 1, 2020, the Minimum Monthly Income will be increased to $243,562, for workers under 18 and over 65 years of age.

3. As of September 1, 2020, the Minimum Monthly Income is increased to $210,458, for non-wage purposes.

4. In April 2021, the President of the Republic must present a new bill proposing an adjustment to this Minimum Monthly Income, with the intent of commencing on May 1, 2021.

5. It also establishes that the greatest expense represented by the application of this law in the year 2020 will be financed with public funds and in the year 2021, the resources will be indicated in the Budget Law.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Law is published that modifies the Labor Code to require certain companies to adopt measures that facilitate the inclusion of workers with disabilities.

On October 21, 2020, Law No. 21.275 was published, amending the Labor Code to require the relevant companies to adopt measures to facilitate the labor inclusion of workers with disabilities. In the core, this law provides for the following:

At least 1 of the workers in human resource-related functions and within companies with 100 or more workers it is required to have specific knowledge in areas that promote the employment inclusion of people with disabilities.

The aforementioned knowledge will be considered sufficient when they have a certification granted by the National System of Certification of Labor Competencies.

These companies must promote policies on matters of inclusion, which will be reported annually to the Labor Department, and must also prepare and execute annual training programs for their personnel.

This law will come into force on November 1, 2022.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Labor Department issues ruling on the right of workers to vote in the referendum of October 25, 2020

On 19 October 2020, Resolution No. 2760/025 was issued by the Directorate of Labor, concerning the referendum of 25th October, in which it pronounces on the permits that must be granted to workers to participate in the referendum voting In general terms, this opinion includes the following:

Sunday, October 25, 2020 is a mandatory holiday for workers who provide services in shopping centers or commercial complexes managed by the same company name or legal personality; consequently, such employees are free to provide services during that day.

On the other hand, workers who are not included in the previous situation and who are legally exempted from Sunday rest and holidays, and therefore have to provide services on Sunday October 25, are entitled to be absent from their work for a period of 2 hours to attend to cast their vote, without this implying a reduction in their wages. Likewise, they have the right to be granted the necessary permits to carry out the functions of member of the polling station, member of the Vote Counting Association or delegate of the Board of Elections.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl).

Law is published that adapts the Labor Code in terms of protection of children and adolescents in the workforce.

On September 30, 2020, Law No. 21.271 was published in the Official Gazette, which amended the Labor Code, adapting it to protect children and adolescents in  the workplace. In particular, this legal amendment contemplates the following:

1. The Labor Code is modified, in that part which contemplated the distinction between adults and minors under eighteen, but over fifteen. By virtue of this law, categories of adolescents are established, with and without age to work respectively.

2. It also establishes an additional category, which is that of children, who in theory are not allowed to be hired, unless certain formalities established in the law are complied with. This legal amendment defines what is meant by “protected adolescent work” and “dangerous work.

3. It establishes that, in qualified cases, children and adolescents who are not old enough to work may enter into contracts to participate in certain shows, with the employer having to adopt effective protection measures and agree on their working hours, always in the best interest of the child or adolescent. It is also added that the employer must pay for transportation and food in adequate conditions.

4. The period during which the adolescent may not work at night is extended to 13 hours, with this limitation governing between 9:00 p.m. and 8:00 a.m.

5. A series of special sanctions are incorporated for employers who fail to comply with any of these limitations.

6. This law will come into force on the first day of the month following the publication of the regulations issued by the Ministry of Labor and Social Welfare, which determine the activities considered as hazardous work and establish guidelines to avoid this type of work.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Ministry of Finance published Decree Nº1.578 which extends the term of benefits of the Employment Protection Law and grants the right to additional transfers from the Solidarity Unemployment Fund.

On October 5, 2020, Decree No. 1578 was published in the Official Gazette, extending the term of the benefits of the Employment Protection Law and granting the right to additional transfers from the Solidarity Unemployment Fund. In specific terms, the Decree contemplates the following:

1. It extends, from October 6, 2020 and until January 6, 2021, the validity of the benefits of the Employment Protection Law.

2. From October 6, 2020 and until January 6, 2021, up to one tenth of the amount to be paid from the Solidarity Unemployment Fund under Law No. 19.728, is granted to the beneficiaries who, during such period, are entitled to the Employment Protection Law benefits paid from the Solidarity Unemployment Fund. As of the sixth draft, the average percentage of remuneration of these drafts is established at 45%, and the value of the benefits associated to the mentioned drafts is set at $419,757, and a lower value of $225,000.

3. It extends from October 31, 2020 and until January 6, 2021, the validity of the benefits and allowances established in Law No. 21,263, with respect to Law No. 19.728.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Ministry of Finance publishes the Decree that orders the payment of the 6th and 7th drafts, with a subsidy payment of 45% of the average remuneration (Unemployment Insurance and Employment Protection Law)

On September 25, 2020, Decree No. 1434 of the Ministry of Finance was published in the Official Gazette, establishing parameters and improving benefits of the unemployment insurance and the employment protection law. As applicable, the decree orders the following:

As of August 1, 2020 and until October 31 of the same year, the average percentage of remuneration corresponding to the fifth line of business charged to the Solidarity Unemployment Fund of Law No. 19.728, applicable to both the Unemployment Insurance and the benefits paid under the Employment Protection Law, is increased to 55%. The higher value of such draft is fixed at $513,038.

It extends, as from August 1, 2020 and until October 31 of the same year, a sixth and seventh draft from the Solidarity Unemployment Fund of the Unemployment Insurance Law, applicable to the benefits paid from such fund under the Employment Protection Law.

As from August 1, 2020 and until October 31 of the same year, the percentage of the average remuneration corresponding to the sixth and seventh drafts charged to the Solidarity Unemployment Fund of Law No. 19,728, applicable to the benefits paid from such fund under the Unemployment Insurance and Employment Protection Law, is increased to 45%. The upper value of such benefits is set at the amount of $419,757 and its lower value at the amount of $225,000.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)

Law Published which makes access requirements more flexible and it increases the amounts of unemployment insurance benefits and improves the benefits of Law No. 21.227

On September 4, 2020, Draft Law No. 21.263 was published in the Official Gazette, which temporarily provides greater flexibility to the access requirements and increases the amount of unemployment insurance benefits under Law No. 19.728 and improves the benefits under Law No. 21.227. The most relevant aspects of this law are as follows:

A. It temporarily provides more flexibility to access requirements and increases the amount of unemployment insurance benefits under Law No. 19.728.

1.Law No. 21,263 provides that workers affiliated to the unemployment insurance who are unemployed may have access until October 31, 2020, to the benefits charged to the Individual Unemployment Account and to the withdrawals charged to the Solidarity Fund, if they comply with any of the requirements of the first paragraph of article 2 of Law No. 21,227 on Employment Protection, regarding the number of contributions.

Unemployed workers who meet the requirements set forth in Section 12 and Section 24, first paragraph, of Law 19.728, which establishes Unemployment Insurance, shall also be entitled to benefits under the conditions indicated in this law.

2. This legal amendment improves the benefits to be paid from the funds of the Individual Severance Account, establishing that they will be calculated on the average of the remunerations accrued by the worker in the last 3 months in which contributions are recorded, prior to the end of the contract, as follows: the first month 70%, the second, third, fourth and fifth month 55% and the sixth month or more 50% of the average remuneration. When the resources of the Individual Severance Account are insufficient, the benefits shall be financed from the Solidarity Fund.

3. On the other hand, it is established that the benefits to be paid from the Solidarity Unemployment Fund will include a maximum of 5 benefits in the percentages indicated below, which will be calculated on the average of the remunerations accrued in the last 3 months in which contributions are registered: 70% in the first month, 55% in the second, third and fourth months and 45% in the fifth month. In addition, these benefits will be affected to higher and lower values for each month, as follows: the first month a higher value of $652,956 and lower of $225,000, the second, third and fourth month a higher value of $513,038 and lower of 225,000 and the fifth month a higher value of $419,757 and lower of $225,000.

However, the law determines that a supreme decree issued by the Ministry of Finance, and also signed by the Minister of Labor and Social Welfare, will establish the parameters that will allow, during the effectiveness of this law, to increase the percentage of the average remuneration of the fifth turn, being able to reach a percentage of the average remuneration of 55%, in which case it must also fix the superior value of the benefit, which will be increased proportionally until reaching the value of $513,038, in case the average percentage of remuneration is increased to the maximum limit of 55% of the same. The parameters to be considered will be, among others, the health and labor market conditions, and the regional realities associated with the impact of the COVID-19 disease.

This law also establishes that the beneficiaries who are receiving the fifth line of payment from the Solidarity Fund will be entitled, during the term of this law, to a sixth and seventh line of payment, equivalent to 30% of the average remuneration. Likewise, the percentage of the average remuneration of the sixth and seventh draft may reach a percentage of the average remuneration of 45%, if the parameters established in the Supreme Decree mentioned above are met, in which case the higher value of the benefit must also be fixed, which will be increased proportionally and may not be higher than the amount indicated for the fifth draft according to the table in the second paragraph of article 4 of this law.

4. Unemployed workers who are affiliated to the unemployment insurance, and who do not meet the access requirements of article 12 of Law 19.728, may only apply for the benefits to be charged to their Individual Account for Unemployment, up to the number of months and in the respective percentages that they can finance.

5. During the term of this law and until October 31st, 2020, access to the benefits of the Unemployment Insurance shall be governed by the percentages and values of this law.

B. The benefits of Law No. 21.227 are perfected.

6. During the term of this law and until October 31, 2020, the suspension of contracts regulated by Article 2 of the Employment Protection Law shall be governed by the rules set forth in the preceding points.

7. In turn, the parameters set forth in the third paragraph of article 4 of Law No. 21.263 will allow an increase, during the term of the law, of the percentage of the average remuneration of the fifth line of business corresponding to the workers subject to Law No. 21.227, which may reach a percentage of the average remuneration of 55%, in which case the higher value of the benefit must also be set, which will be increased proportionally and may not exceed $513,038.

8. In case the sanitary conditions so merit and the parameters established in the decree indicated in the third paragraph of article 4 are met, the Minister of Finance, by means of one or more supreme decrees, which will also be signed by the Minister of Labor and Social Welfare, may increase the percentage of the average remuneration of the fifth line of business.

9. Likewise, the parameters indicated in the third paragraph of article 4 will serve to determine the potential extension of the drafts to be carried out by the Solidarity Unemployment Fund, granting a sixth and seventh draft until October 31, 2020.

10. The decree will establish the percentage of the average remuneration to be considered, which may not be higher than 45%, and the higher and lower values of the benefit, which may not exceed the values of the fifth round according to the table in the second paragraph of article 4, being fixed proportionally.

11. In the case of workers who, as of August 2020, are entitled to receive the fifth payment from the Solidarity Unemployment Fund, pursuant to Law No. 19,728 or Title I of Law No. 21,227, the percentage of the average remuneration on which such payment will be calculated shall be 55%, the higher and lower values being adjusted according to the table in the second paragraph of Article 4, without the need to issue the supreme decree referred to in such law and in the third paragraph of Article 7 of this law.

12. It is also established that the agreement for the temporary decrease of working hours may be signed until July 31, 2021

13. Within the term of three months counted from the publication of the present law, and before the term of validity of the norms indicated in the following literals, the Ministry of Finance, by means of one or more supreme decrees, signed, in addition, by the Minister of Labor and Social Welfare, may:

– Extend, as of the date of its expiration, the validity of the benefits and allowances set forth in Title I of Law No. 21.227, and also grant the right to additional drafts charged to the Solidarity Unemployment Fund of Law No. 19.728 in the event described in the first paragraph of Article 1 of Law No. 21.227, under the terms and conditions set forth in this law for a maximum period of five months;

– Extend, as of the date of its expiration, the validity of the benefits and allowances established in Title II of Law No. 21.227, under the terms and conditions set forth in said legal body, for a maximum period of five months; and

– To extend, as of the date of its expiration, the validity of the benefits and allowances established in this law, with respect to Law No. 19,728, for a maximum period of five months.

The aforementioned supreme decrees must be issued in consideration of objective circumstances, among others, the health conditions of the country, labor market conditions or regional realities associated with the impact of the COVID-19 disease.

14. The workers covered by the provisions of Titles I and II of Law No. 21.227, on Employment Protection, may enter into new employment contracts of a transitory nature with other employers, without losing their employment relationship or the payment of benefits from unemployment insurance.

15. It is established that in the event that the effects of the suspension of the labor relationship under the Employment Protection Law cease, the employers at the time of reinstatement of the workers shall not discriminate in the treatment or establish arbitrary differences between those who had their contracts suspended unilaterally by act of authority, and those who suspended their contracts by common agreement.

C. General Provisions.

16. This law shall enter into effect on the date of its publication in the Official Gazette and shall be in force until October 31, 2020. Notwithstanding the foregoing, for purposes of access, calculation and payment of benefits, it shall be understood that it entered into force on August 1, 2020.

In case you require additional information on this matter, you may contact Alfred Sherman (asherman@jdf.cl) and/or Felipe Ovalle (fovalle@jdf.cl)