On April 16, 2021, the Department of Labour issued a debatable statement by means of Ordinary No. 1259, in which it states its opinion regarding what happens to female workers with children under 2 years of age while exercising the right to feed and who receive variable salaries. Specifically, this statement indicates the following:

1. According to the Department of Labour, the time used by a working mother in exercising the right to feeding contemplated in article 206 of the Labor Code, should be considered by the employer when establishing the rules that will regulate the payment of a variable salary subject to the fulfillment of goals.

2. In this regard, the Regular points out that the fact of not considering this period in the calculation of the readjustment of goals for female employees would represent a disadvantage in relation to their co-workers who have the entire working day available.

3. In the opinion of the Department of Labour, such a circumstance would not be in accordance with the law and could constitute a discriminatory act in the labor field, in view of a possible affectation of the principle of equal salaries.

4. In this sense, the Ordinary also provides that, if the employer recalculates the fulfillment of the monthly goals, it must pay the eventual differences that may have occurred in favor of such workers, provided that such obligations are not statute-barred.

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