Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

See under Convention No. 1, as follows:

The Government has communicated the following information:

The Government wishes to recall that following previous comments made by the Committee of Experts, Act No. 18-372 of December 1984 was adopted with the aim of bringing the national legislation into conformity with the Convention.

It realises that despite this effort, the Committee considers that differences continue to exist between the law and the Convention. The Government has taken note of these comments and is studying them with special interest. Unfortunately, the report containing them arrived at a time which did not permit a complete statement to be made as requested by the Committee of Experts to this session of the Conference.

In addition, a Government representative, the Deputy Minister of Labour of Chile, after stressing the efforts which his Government had made to co-operate with various ILO supervisory bodies, pointed out that in December 1984 Act No. 18,372 had been adopted, which provided for a maximum working week of 48 hours spread over not more than six nor less than five days, with a maximum working day of ten hours. This Act had been adopted for the express purpose of adapting national legislation to the requirements of ILO Conventions, especially Conventions Nos. 1 and 30. However, both the special committee set up by the Governing Body to examine the representation submitted under article 24 of the ILO Constitution and the Committee of Experts had considered that, in spite of the amendment introduced by Act No. 18, 372, there were still divergencies between the provisions of the Convention and national legislation so far as the unequal distribution of the working day and of overtime were concerned. Those divergencies were being carefully studied by his Government, so that action could be taken on the comments made.

The Employers' members noted the consistent efforts made by the Government to co-operate with the supervisory bodies of the ILO, including the present Committee. In fact, it could be ascertained from the report of the Committee of Experts that the number of problems relating to Convention No. 1 had been reduced to some extent by the amendements to the national legislation. However, problems still remained in respect of Act No. 18,372 of 1984. The Employers' members expressed their concern over the maximum working hours and the uneven distribution of overall working time, which posed the danger that the daily limit of ten working hour would be exceeded. Similar problems arose with the question of overtime and the conditions in which overtime was permitted. In that respect the Convention called for a clearer set of regulations. The problems in question had arisen after the 1984 Act had come into force and involved highly technical issues. It was the Employers' members' understanding that the Government was prepared to remedy the situation along the lines suggested by the Committee of Experts and to bring its legislation fully into line with the Convention.

The Workers' members drew attention to two divergencies in Chile's implementation of Convention No. 1: first, the maximum working day in Chile was ten hours, instead of nine hours stipulated by the Convention; second, there were problems concerning the regulation of overtime. The Government had stated that its labour law gave precedence to the mutual will of the parties. Such mutual will might very well exist, but when too much flexibility was permitted, Convention No. 1 was not being fully observed. Regulations to govern exemptions to general rules were therefore required. The Workers' members trusted that the Government would take the necessary steps to give full effect to the Convention as soon as possible.

The Worker member of Chile stressed the great importance of this Convention, which limited the working week to 48 hours. In the context of the widespread unemployment caused by automation and population growth, it was highly desirable that the working week should be reduced further, rather than extended. The Government representative had referred to Act No. 18,372, and it had been stated that section 37 of Legislative Decree No. 2,200 stipulated that the maximum working hours should be ten per day. However, under the same provision the period could be extended to 12 hours a day in the case of intermittent work (that of waiters, nightwatchkeepers, etc.). Since that provision was open to abuse, the Chilean workers hoped that the Government would show its good faith by repealing it. The Committee of Experts was right to insist that the working day should not be more than nine hours, since Chile, under collective agreements, had a five-day working week, with a nine-and-a-half-hour working day. On that point too, the Government could show its good faith by resolving the problem once and for all, so that there would be no need for the Committee to consider Chile's implementation of this Convention again in the years to come.

The Government representative noted that, with the adoption of Act No. 18,372, the length of the comments made by the Committee of Experts and the Conference Committee with regard to his country's implementation of Conventions Nos. 1 and 30 had been substantially reduced. Only two problems remained with regard to Convention No. 1. The problem of the length of the working day arose only when working hours were distributed over five days, with the result that, with a 48-hour working week, the normal time worked per day could be 36 minutes longer than nine hours. In any case, it should be pointed out that the amendment had been adopted with the express intention of ensuring conformity with Conventions Nos. 1 and 30, in spite of opposition from certain sectors of the workers who preferred a system that enabled them to have more full rest days in exchange for longer working days.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1 of the Convention. Scope of application – Homeworkers and telework. The Committee notes the Government’s indication that workers who work at home or in a place chosen by them, as well as those who perform their work outside the enterprise and by IT means and telecommunication tools, continue to be excluded from the rules respecting the limitation of hours of work. In this respect, the Committee draws the Government’s attention to the fact that Article 1, paragraph 3, of the Convention envisages specific and limited possibilities for exemption, namely: (i) establishments in which only members of the employer’s family are employed; (ii) offices in which the staff is engaged in connection with the administration of public authority; (iii) persons occupying positions of management or employed in a confidential capacity; and (iv) travellers and representatives, in so far as they carry on their work outside the establishment. The Committee once again requests the Government to take the necessary measures to ensure that the hours of work of homeworkers do not exceed eight in the day and 48 in the week.

Article 6. Working hour limits – Exceptional cases. Further to its previous comment, the Committee notes the Government’s indication that the Labour Directorate has determined a series of criteria through which any discretionary and arbitrary decision can be avoided when establishing exceptional systems for the distribution of hours of work and periods of rest under section 38(6) of the Labour Code. It also notes the indication that, even in exceptional cases, maximum weekly working time may not exceed 45 hours. In this respect, the Government refers to a form for applications to introduce an exceptional system. The Committee requests the Government to specify the criteria referred to above (and to indicate the law or regulation which provides that the limit of 45 hours in the week also applies to exceptional systems) and to provide a copy of the form for the application to introduce an exceptional system, which was not attached to the Government’s report.

Distribution of hours of work over a period longer than one week. Further to its previous comment concerning section 39 of the Labour Code respecting labour outside urban centres, the Committee notes the explanations provided by the Government that the fact that normal hours of work are spread over periods of two weeks without interruption is justified in particular in cases in which the distance between the usual place of residence and the place of work is so great that the ordinary system of distribution of hours of work is not applicable and the workers must necessarily spend the night at their workplace. The Committee recalls that the distribution of hours of work over a period in excess of one week can only be authorized by regulations made by the public authority and on condition that the average hours of work calculated over the number of weeks in consideration does not exceed 48 hours in the week. The Committee requests the Government to take the necessary measures to bring the legislation into conformity with the provisions of the Convention on this point.

Article 7. Temporary exceptions – Commercial employees. The Committee notes the Government’s reference to Act No. 20.215 of 10 September 2007 which limits to nine days the period during which the normal hours of work of commercial employees may be extended before Christmas. However, the Committee is bound to recall that such exceptions require the adoption of regulations after consultation with the organizations of employers and workers concerned. These regulations must determine the number of additional hours of work which may be allowed not only in the day, but also in the year. The Committee requests the Government to take the necessary measures to bring the legislation into conformity with the Convention on this point.

Ministries and public services. In the absence of information on this subject, the Committee once again requests the Government to provide examples of cases in which the administrative authorities have made use of section 60 of Act No. 18.834 and to indicate the maximum number of additional hours that may have been determined in each case.

Part V of the report form. Practical application. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice including, for instance, extracts from the reports of the inspection services indicating the number of violations reported in relation to hours of work and the sanctions applied, information on the number of workers covered by the legislation, copies of relevant collective agreements, etc.

The Committee also notes that the Government has not provided any further information on the Bill to amend the Labour Code with a view to providing greater flexibility in relation to hours of work. It further notes that, among the many draft texts that are currently being adopted, there is a Bill to reduce the working week to 42 hours as from January 2009. The Committee requests the Government to keep the Office informed of any development in this field and to provide a copy of any relevant text as soon as it is adopted.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 7 of the Convention. Temporary exceptions – additional hours. The Committee notes with regret that the issue of overtime hours and the harmonization of sections 31 and 32 of the Labour Code with the provisions of the Convention have been raised for many years without result. In its latest report, the Government indicates that there are no special circumstances which have resulted in the conclusion of agreements under the above sections. The Committee also notes that, although Act No. 19.759 of 27 September 2001 restricts recourse to overtime hours to responses to “a temporary need or situation prevailing in the enterprise”, section 31 of the Labour Code nevertheless still allows the parties to agree that overtime hours will be performed up to the limit of two hours in the day in jobs which, by their nature, are not harmful to the health of workers. The Committee recalls once again that Article 7, paragraph 2, of the Convention only allows temporary exceptions in specific cases, namely: (i) in case of accident, actual or threatened, force majeure or urgent work to machinery or plant, but only so far as may be necessary to avoid serious interference with the ordinary working of the establishment; (ii) in order to prevent the loss of perishable goods or avoid endangering the technical results of the work; (iii) in order to allow for special work such as stocktaking and the preparation of balance sheets, settlement days, liquidations, and the balancing and closing of accounts; and (iv) in order to enable establishments to deal with case of abnormal pressure of work due to special circumstances, insofar as the employer cannot ordinarily be expected to resort to other measures.

Moreover, with regard to collective agreements containing provisions respecting overtime hours, the Committee notes the Government’s indication that there has been no change in the legislation in this field and that the limit of overtime hours is determined by day and not in the year, contrary to Article 7, paragraph 3, of the Convention which requires, in respect of temporary exceptions, that the number of additional hours of work which may be allowed to be determined in the day and in the year. The Committee requests the Government to take the necessary measures without further delay to bring its legislation into conformity with the provisions of the Convention in this respect. It also requests the Government to provide copies of collective agreements establishing systems of overtime hours.

The Committee is also addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 1 of the Convention. 1. Home work and telework. Section 22 of the Labour Code excludes from the rules on the limits on the hours of work, inter alia, workers who work at home or in a place chosen by themselves. Since the adoption of Act No. 19.759, workers who by preference perform their tasks outside the enterprise and make use of information technology or telecommunications equipment are also excluded. The Committee reminds the Government that the exceptions set out in Article 1 of the Convention are exhaustive and do not include these categories of workers. It requests the Government to indicate the measures envisaged to ensure that the hours of work of these workers do not exceed eight hours in the day and 48 hours in the week.

2. Part-time work. Furthermore, Act No. 19.759 introduced into the Labour Code rules on part-time work, defined in section 40bis as being work not exceeding two-thirds of normal working hours. Under the terms of section 40bis(C), the parties may agree on alternative schemes for the distribution of hours of work, between which the employer may then choose. The Committee requests the Government to provide information on the forms that may be taken by these schemes and on the measures adopted to ensure that they comply with the weekly and daily limits on normal hours of work.

Article 6. 1. Exceptional systems. The Director of the Labour Administration may, in specific cases and with the agreement of the workers concerned, establish exceptional systems for the distribution of hours of work and rest periods by means of a decision for which reasons are given and of which the validity may not be more than four years (section 38 of the Labour Code). The Committee requests the Government to indicate the daily and weekly limits applicable in the context of these exceptional systems. The Government is also requested to provide copies of any decisions of this type adopted by the Director of the Labour Administration.

2. Work outside urban centres. Under the terms of section 39 of the Labour Code, where work is performed outside urban centres, the parties may agree that the normal hours of work shall be arranged over periods of two weeks without interruption, provided that compensatory rest days are granted for any Sundays and national holidays that are worked. The Committee recalls that the exceptions allowed by Article 6 of the Convention are limited to exceptional cases in which the daily and weekly limits on working time are recognized as being inapplicable. However, this is not necessarily the case of work performed outside urban centres as workers may have access to means of transport. The Committee requests the Government to provide information on the effect given in practice to this provision and to specify whether the agreements referred to ensure compliance with the limit of 48 hours in the week for the average weekly hours of work.

Article 7, paragraphs 2 and 3, and Article 8. 1. Commercial employees. The Committee notes that section 24 of the Labour Code authorizes the employer to extend the normal hours of work of commercial employees by up to two hours in the day during the periods immediately preceding Christmas, the national holiday and other official holidays. Under the terms of Article 7, paragraph 2(d), of the Convention, such exceptions require the adoption of regulations after consultation with the workers’ and employers’ organizations concerned. These regulations have to determine the number of additional hours of work which may be allowed, not only in the day, but also in the year. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that additional hours by commercial employees are only authorized in compliance with the above conditions.

2. Ministries and public services. Act No. 18.834 issuing the administrative regulations establishes rules on hours of work for employees of ministries and public services who are being excluded from the scope of the Labour Code under section 1. Section 60 of the Act provides that authorities empowered to do so may require the performance of additional hours in cases where the work to be undertaken cannot be postponed. The Committee requests the Government to provide examples of cases in which the administrative authorities have made use of this provision. The Government is also requested to indicate the maximum number of additional hours that may be imposed in each case.

Bill to amend the Labour Code. The Committee also notes that the Government has submitted to Parliament a Bill to amend the Labour Code with a view, inter alia, to provide greater flexibility in relation to hours of work. As indicated by the Government in Message No. 136-343, attached to its report, the Bill is designed to transfer areas of competence from the legislative authority to autonomous collective use. For example, an employer and a trade union could, subject to approval by the majority of the workers concerned, conclude an agreement for the monthly averaging of working hours, with a maximum of 186 hours of work in the month and the possibility to perform a maximum of 30 additional hours in the month. In this case, the maximum daily hours of work would be raised to 12 hours. The Committee draws the Government’s attention to the fact that such provisions could be contrary to the requirements of the Convention, and particularly Article 3. It requests the Government to provide all relevant information on the examination of this Bill by Parliament and the effects that its adoption could have on the application of the Convention.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 7 of the Convention. 1. Additional hours. Section 31 of the Labour Code still allows the parties to agree that up to two additional hours in the day may be worked in jobs which by their nature do not harm the health of the worker. Act No. 19.759 of 27 September 2001, amending the Labour Code, restricted the cases in which recourse to additional hours is authorized (section 32, as amended, of the Labour Code). Henceforth, the performance of additional hours has to respond to a "need or temporary situation prevailing in the enterprise". These terms are defined in section 4 of Circular No. 0332/0023, of 30 January 2002, as non-permanent circumstances in which the production activities of the enterprise are carried on, arising out of occasional events or factors which cannot be avoided, and which result in a greater volume of work during a given period. The Committee draws the Government’s attention to the fact that, with the exception of cases of force majeure or urgent work, as covered by section 29 of the Labour Code, Article 7, paragraph 2, of the Convention authorizes temporary exceptions in order to prevent the loss of perishable goods or avoid endangering the technical results of the work, to allow for special work or to enable establishments to deal with cases of abnormal pressure of work, in so far as the employer cannot ordinarily be expected to resort to other measures. The Committee requests the Government to provide more detailed information on the circumstances in which agreements may be concluded under sections 31 and 32 of the Labour Code.

2. Renewal of collective accords. Although accords for the performance of additional hours may not have an initial duration in excess of three months, they may be renewed insofar as the circumstances leading to their conclusion persist (section 32 of the Labour Code). The Labour Code only establishes a daily limit on the number of additional hours authorized. However, Article 7, paragraph 3, of the Convention requires that the number of additional hours of work allowed shall be determined not only in the day, but also in the year. The Committee therefore once again requests the Government to take the necessary measures to determine in advance the maximum number of additional hours which may be allowed in the year. The Government is also asked to provide copies of any collective accords which establish a system of additional hours.

The Committee is also addressing a request directly to the Government on other matters.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's latest report and the information supplied therein in response to its previous observations.

With reference to its earlier comments, the Committee recalls that it has for some years noted that section 31 of the Labour Code, which makes general allowance for extending normal working hours by permitting the parties to an employment contract to agree to work two additional hours in the day in jobs which by their nature do not harm the health of the worker, violate the Convention, which specifies that exceptions to normal hours of work may only be made in the cases provided for in Article 7 of the Convention. It wishes to draw the Government's attention to the fact that the limitation to hours of work determined by Article 3 of the Convention are restricting in character, notwithstanding the permanent or temporary exceptions specified by the Convention, and that they may not be altered by contractual changes, even where these are provided for by law.

The Committee again requests the Government to take the necessary measures to bring its legislation into conformity with the Convention on this point.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the information supplied in answer to its previous comments. It notes, however, that the Government provides no new information on the comments made by the Committee in its previous observations on the application of Articles 7 and 8 of the Convention, except to indicate that hours worked in excess of normal working hours are voluntary, exceptional and limited. The Committee pointed out that overtime worked by employees in commerce may be authorized only by regulations established after consultation with employers' and workers' organizations.

The Committtee must therefore recall that exceptions to normal working hours are allowed only in the cases provided for in Article 7, paragraphs 1 and 2, of the Convention and that the maximum number of additional hours that may be allowed must be fixed on a daily basis with regard to permanent exceptions and on a yearly basis for temporary exceptions (Article 7, paragraph 3). Furthermore, these exceptions must be determined after consultation with employers' and workers' organizations (Article 8).

The Committee once again asks the Government to take the necessary measures to bring its legislation fully into conformity with the Convention in respect of these points.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the information supplied by the Government in its reports, which were received by the Office on 16 January and 13 November 1989 and include replies to its previous comments. In its previous comments, the Committee requested the Government on several occasions to take the necessary measures to amend section 36 of Legislative Decree No. 2200 of 1978 (as amended by Act No. 18018 of 1981 and by Act No. 18372 of 1984) so as to authorize overtime by workers in commerce only through regulations issued after consultation with the employers' and workers' organizations. The Committee also referred to section 42 of Legislative Decree No. 2200 (as amended), which permitted the parties to agree to work two additional hours in the day in jobs which, by their nature, do not harm the health of the worker. Furthermore, by virtue of section 43(2) of the same Legislative Decree, working hours that exceed the normal working week, of which the employer is aware, were authorized as overtime hours, even in the absence of a written agreement. The Committee notes that the new Labour Code (Act No. 18-620 of 6 July 1987), section 454 of which repeals the above Legislative Decree No. 2200, does not change the previous situation. It is therefore bound to point out that exceptions to normal working hours are only permitted in the cases laid down in Article 7, paragraphs 1 and 2, and that the maximum number of additional hours of work which may be allowed must be determined in the day in respect of permanent exceptions and yearly as regards temporary exceptions (Article 7, paragraph 3). Furthermore, these exceptions must be determined after consultation with the workers' and employers' organizations concerned (Article 8). The Committee requests the Government to take the necessary measures to bring its legislation into full conformity with the Convention on these various points.

The Government is asked to report in detail for the period ending 30 June 1993.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee refers to its previous direct request. In two successive communications, the National Federation of Telephone and Telecommunication Workers' Unions, the Administrative and Specialised Workers' Union No. 9 of the Chilean Telephone Company and the National Telephone Union have submitted comments on the application of the Convention. These organisations referred in particular to the unilateral decision taken by the management of the Telephone Company of Chile to change the working hours of its commercial operations staff by increasing them to 50 hours and 15 minutes per week and alleged the violation of section 23 of the Labour Code, which sets the normal duration of a working week at 48 hours, and of Article 3 of the Convention which lays down that the hours of work of persons to whom this Convention applies shall not exceed 48 hours in the week.

These comments were transmitted to the Government by letters dated 6 and 20 December 1988. The Government gave its reply in a communication dated 21 March 1989. It states that in fact the working week for the workers concerned, which was originally 41 hours and 30 minutes distributed over five days, has been increased to 45 hours and 15 minutes distributed over six days, but that the five hours set aside for meals, which the trade union organisations consider to be a part of the working week (which would bring the working week up to 50 hours and 15 minutes), must not be counted in working hours, under section 33 of the Labour Code.

The Committee notes the Government's reply. It points out that Article 2 considers as hours of work "the time during which the persons employed are at the disposal of the employer; it does not include rest periods during which the persons employed are not at the disposal of the employer". It therefore appears to the Committee that, in this particular case, the working hours in the week, which were originally 41 hours and 30 minutes distributed over five days and which have been increased to 45 hours and 15 minutes distributed over six days, remain in conformity with Article 3, which sets the limit of working hours in the week at 48 hours.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government in its reports, which were received by the Office on 16 January and 13 November 1989 and include replies to its previous comments.

In its previous comments, the Committee requested the Government on several occasions to take the necessary measures to amend section 36 of Legislative Decree No. 2200 of 1978 (as amended by Act No. 18018 of 1981 and by Act No. 18372 of 1984) so as to authorise overtime by workers in commerce only through regulations issued after consultation with the employers' and workers' organisations.

The Committee also referred to section 42 of Legislative Decree No. 2200 (as amended), which permitted the parties to agree to work two additional hours in the day in jobs which, by their nature, do not harm the health of the worker. Furthermore, by virtue of section 43(2) of the same Legislative Decree, working hours that exceed the normal working week, of which the employer is aware, were authorised as overtime hours, even in the absence of a written agreement.

The Committee notes that the new Labour Code (Act No. 18-620 of 6 July 1987), section 454 of which repeals the above Legislative Decree No. 2200, does not change the previous situation. It is therefore bound to point out that exceptions to normal working hours are only permitted in the cases laid down in Article 7, paragraphs 1 and 2, and that the maximum number of additional hours of work which may be allowed must be determined in the day in respect of permanent exceptions and yearly as regards temporary exceptions (Article 7, paragraph 3). Furthermore, these exceptions must be determined after consultation with the workers' and employers' organisations concerned (Article 8).

The Committee requests the Government to take the necessary measures to bring its legislation into full conformity with the Convention on these various points.