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

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 5 of the Convention. Working hour limits – Exceptional cases. The Committee notes the adoption of resolution No. 1082 of 22 September 2005, which authorizes the introduction of an exceptional system for the distribution of working hours and rest periods for drivers and auxiliaries employed in intercity transport services and on railways. It notes that this resolution introduces three types of distribution: (i) seven consecutive days’ work followed by two days’ rest; (ii) nine consecutive days’ work followed by three days’ rest; and/or (iii) ten consecutive days’ work followed by four days’ rest. In this regard, the Committee recalls that under the Convention exceptions to the daily and weekly hours of work may only be granted in exceptional cases rendering the normal working hour limits inapplicable by means of an agreement between the workers’ and employers’ organizations (Article 5, paragraph 1) and provided that the average number of hours worked per week, over the number of weeks covered by any such agreement, does not exceed 48 hours (Article 5, paragraph 2). The Committee notes that, although section 3 of the resolution mentioned above requires a prior agreement between the transport enterprise and its employees before a request for authorization may be examined, it does not contain a provision on the daily and weekly limits applicable in the context of this exceptional system. The Committee therefore requests the Government to provide further information on this point and to indicate how it is ensured that the average number of hours worked per week does not exceed 48 hours.

With regard to Articles 2 (normal daily and weekly working hours), 5 (distribution of working hours over a period longer than one week) and 6 (permanent and temporary exceptions), the Committee requests the Government to refer to the comments made under Articles 1, 6 and 7 of Convention No. 30.

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

Article 2 of the Convention. Maximum working day. The Committee notes with regret that the Government only provides very partial replies to the various points that have been raised for many years. Further to its previous comments concerning section 28 of the Labour Code, which sets a maximum working day of ten hours, the Committee regrets that the Government limits itself to indicating that, since it is a legislative matter, the competent authorities will be informed so that they take into consideration the amendment of the above section during future reforms of the labour legislation. The Committee expresses its firm hope that the comments that it has made on this matter will be taken into account promptly and requests the Government to keep the Office informed of any developments in this regard.

With regard to Article 6 (overtime in the case of temporary exceptions), the Committee requests the Government to refer to the comments made under Article 7 of Convention No. 30.

Furthermore, the Committee addresses a request to the Government directly on other points.

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

Article 2 of the Convention. Homeworkers. 1. Section 22 of the Labour Code excludes from the limit on working hours, among others, persons who work at home or in a place of their choice. The Committee reminds the Government that the exceptions allowed by Article 2 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 working hours of these workers do not exceed eight hours a day and 48 hours a week.

2. Part-time work. Act No. 19.759 introduced into the Labour Code rules on part-time work, which is defined in section 40bis as work that does not exceed two-thirds of the normal working hours. However, section 40bis A provides that the normal working day of part-time workers shall not exceed ten hours. The Committee requests the Government to indicate the measures taken or envisaged to ensure compliance with Article 2(b) of the Convention, which sets a limit of nine hours for the normal working day. Under section 40bis C, the parties may agree to alternative ways of distributing working hours, and the employer may then choose among them. The Committee requests the Government to provide information on these various arrangements and on the measures taken to ensure that they comply with the daily and weekly limits on normal working hours.

Article 5. 1. Monthly accounting of working hours. Section 25 of the Labour Code provides for monthly accounting of the working hours of drivers and auxiliaries employed in inter-city transport services and on railways, the monthly hours of work being 180 hours. The Committee draws the Government’s attention to the fact that an agreement between workers’ and employers’ organizations is required in order to distribute working hours over a period longer than one week. It accordingly asks the Government to indicate whether an agreement has been concluded to count the working hours of the above categories of workers on a monthly basis.

2. Exceptional systems. The Director of Labour Administration may, in specific cases and with the agreement of the workers concerned, establish exceptional systems for the distribution of working hours and rest periods by a substantiated decision, the validity of which may not exceed four years (section 38 of the Labour Code). The Committee requests the Government to indicate the daily and weekly limits that apply in these exceptional systems. The Government is also requested to provide copies of any decisions of this kind adopted by the Director of Labour Administration.

3. Work outside urban centres. Pursuant to section 39 of the Labour Code, where work is carried on outside urban centres, the parties may agree to normal working hours being spread over uninterrupted two-week periods, provided that compensatory rest days are granted for Sundays and holidays that are worked. The Committee recalls that Article 5 of the Convention which enables modification to the daily limit of work over a longer period than one week, is limited to exceptional cases, in which it is recognized that such limits on working hours cannot be applied. The Committee considers that the fact that work is performed outside urban centres may not in itself amount to being an exceptional case within Article 5. The Committee requests the Government to provide information on the application of this provision in practice and to specify whether the agreements referred to ensure compliance with the 48-hour limit on average weekly working time.

Article 6. Ministries and public services. Act No. 18.834 issuing the Administration Regulations sets rules on the hours of work of the staff of ministries and public services, the latter being excluded from the scope of the Labour Code by section 1 of the Code. Section 60 of the abovementioned Act provides that the competent authorities may require overtime to be performed where the tasks to be accomplished cannot be postponed. The Committee requests the Government to provide examples of cases in which the administrative authorities have used this provision. The Government is also asked to indicate the maximum amount of overtime that may be required in each case.

Part V of the report form. The Committee notes the statistical information supplied by the Government on average working hours. It nevertheless asks the Government to provide all relevant particulars as to the number of workers who are subject to unequal distribution of working hours over the week.

Bill to amend the Labour Code. The Committee notes that the Government has submitted to Parliament a bill to amend the Labour Code, among other things to secure greater flexibility in working hours. As the Government indicates in Message No. 136-343, appended to its report, the bill aims to transfer authority from the law to collective agreements. Thus, an employer and a trade union could, with the agreement of the majority of the workers concerned, conclude an agreement to place working hours on a monthly basis, allowing normal monthly working time to amount to a maximum of 186 hours and monthly overtime to amount to a maximum of 30 hours. This would bring maximum daily working time up to 12 hours. The Committee draws the Government’s attention to the fact that such provisions could be contrary to the Convention, particularly Article 2. It requests the Government to provide all relevant information on Parliament’s examination of the bill and the implications that its adoption could have for the application of the Convention.

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

Article 2(b) of the Convention. Normal working hours. The Committee notes with interest that, following the adoption of Act No. 19.759 of 27 September 2001 amending the Labour Code, normal weekly working hours have been reduced from 48 to 45 with effect from 1 January 2005 (section 22, as amended, of the Labour Code). The Committee notes with regret, however, that the Government did not take the opportunity at the same time to amend section 28 of the Labour Code to bring it into line with Article 2(b) of the Convention. Although the normal working week of 45 hours amounts to nine hours a day for a working week of five days, where hours of work are unevenly distributed the nine-hour limit may be exceeded since section 28 sets a maximum working day of ten hours. The Committee is therefore bound to request once again the Government to take the necessary steps to prevent the daily limit of nine hours from being exceeded, in accordance with Article 2(b) of the Convention.

Article 6. 1. Overtime. Section 31 of the Labour Code still allows parties to agree to overtime of up to two hours a day in jobs which, by their nature, do not harm the health of the workers. Act No. 19.759 has placed a limit on the cases in which recourse to overtime is allowed (section 32, as amended). For overtime to be allowed, there must now be a "need or temporary situation prevailing in the enterprise". These terms are defined by section 4 of Circular 0332/0023 of 30 January 2002 as non-permanent circumstances in which the productive activity of the enterprise is carried out, which are the result of occasional occurrences or factors that cannot be avoided, and which generate excess work for a given period. The Committee requests the Government to provide more specific information on the circumstances in which such agreements may be concluded, given that Article 6, paragraph 1(b), of the Convention allows temporary exceptions to normal working hours only to enable enterprises to deal with exceptional cases of pressure of work and on condition that the employer cannot ordinarily be expected to resort to other measures.

2. Renewal of collective agreements. Although agreements for the performance of overtime may not initially be for more than three months, they may be renewed, under section 32 of the Labour Code, where the circumstances that led to their need persist. The Labour Code establishes only a daily limit to authorized overtime. As already pointed out by the Committee, if not accompanied by a reasonable annual limit, a daily limit of two hours’ overtime could give rise to abuse. Consequently, the Committee again requests the Government to take the necessary steps to establish in advance, the maximum amount of overtime that may be authorized per year. The Government is also asked to provide copies of collective agreements, if any, establishing overtime arrangements.

The Committee raises other matters in a request addressed directly to the Government.

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

The Committee notes the Government's last report on the application of the Convention and the information supplied in response to its observation of 1994. It notes with regret that, with regard to the application of Articles 2(b) and 6 of the Convention, on which the Committee has been commenting for very many years, the Government merely repeats the arguments put forward in its previous report.

The Government indicates that the distribution of weekly hours of work over five days, as provided in section 28 of the Labour Code, which means exceeding the daily maximum of nine hours allowed by Article 2(b) of the Convention, is justified because the worker is granted an additional day of rest. The Government emphasizes that such distribution is voluntary, exceptional and limited. The Committee wishes to recall that Article 2(b) was so drafted as to stress the need to protect workers by placing a limit on the number of hours that may be worked per day in excess of the daily limit in the event of unequal distribution of the working week. To that end, daily overtime is restricted to one hour. The Committee requests the Government to communicate any relevant information as regards the number of workers covered by this exceptional working-time arrangement.

Furthermore, the Government indicates that the provisions of sections 30 and 31 of the Labour Code, which allow overtime of up to two hours per day in certain jobs, are adequately restricted by section 29, which lays down the exceptions which may be allowed to normal daily working hours. The Committee wishes to remind the Government, however, that reasonable limits to such exceptions need to be set. To allow two hours' overtime per day without establishing other safeguards, such as a monthly or annual limit, is contrary to the provisions of Article 6, paragraph 2, of the Convention and the intent of the Conference, in that it could lead to abuses. Consequently, the Committee again asks the Government to take the necessary measures to ensure that this Article of the Convention is fully applied.

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, as well as the observations submitted by a trade union organization ("Sindicato de Trabajadores Num. 7, Division el Teniente, Codelco Chile") alleging non-observance of the Convention. It notes, however, that the Government does not add any new information relevant to the comments made by the Committee in its previous observations on the application of Articles 2(b) and 6 of the Convention, except for the indication that hours worked in excess of normal working hours are voluntary, exceptional and limited.

The Committee therefore once again asks the Government to take the necessary measures to ensure that: (i) the limit of nine hours of work per day prescribed by Article 2(b) of the Convention may not be exceeded; (ii) exceptions to normal working hours are only allowed in the cases provided for in the Convention and that the maximum number of additional hours that may be authorized is fixed in advance, in accordance with Article 6 of the Convention.

Furthermore, the Committee notes the information on the practical application of the Convention and would be grateful if the Government would continue to provide available information in answer to the request contained in Part VI of the report form.

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

The Committee notes the Government's statement in reply to a comment from a trade union alleging that the Convention is not applied, to the effect that the dialogue on the application of the Convention is being pursued with the Committee of Experts. The Committee regrets to note, however, that the Government has provided neither a report nor a reply to its observation of 1990.

Article 2(b) of the Convention. In its previous observation, the Committee pointed out that the text of the new Labour Code of 1987 had not changed the situation on which it had been commenting for many years.

The Code establishes a working week of 48 hours (section 23) and an ordinary working day of a maximum of ten hours (section 27).

The Committee noted in this connection that the division of the working week into five working days of nine hours and 36 minutes is offset by an additional rest day. The Committee none the less considered that this was at variance with Article 2(b) of the Convention.

The Committee again requests the Government to take the necessary steps to ensure that the daily limit of nine hours laid down in Article 2(b) of the Convention is not exceeded.

Article 6. The Committee pointed out that sections 30 and 31 of the Labour Code permit up to two hours overtime per day in certain jobs and that, under section 31(2), the hours worked in excess of the established working hours are considered as overtime, the employer alone being aware of them, and considered that these provisions were contrary to those of the Convention. Article 6(1)(b) of the Convention lays down that temporary exceptions to normal working hours may be permitted only to allow establishments to deal with exceptional cases of pressure of work, and article 6(2) lays down that the maximum number of additional hours that may be authorized must be fixed in advance.

The Committee again asks the Government to take the necessary measures so as to permit exceptions to normal working hours only in the cases set out in the Convention and to fix in advance the maximum number of additional hours that may be authorized. It recalls that a limit of two additional hours per day without a reasonable annual limit could give rise to abuses and would be definitely contrary to the spirit in which the Convention was formulated.

The Committee also asks the Government to provide information on the application of the Convention by supplying, for example, as provided for by Part VI of the report form, extracts of inspection reports, statistics or any other relevant information.

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

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the comments made in February 1992 by the "Sindicato de Trabajadores Num 7, Division el Teniente, Codelco Chile", which contain a statement to the effect that the Government does not comply with its obligations under the Convention. It also notes that these comments were sent to the Government, in March 1992, in order that the Government may make such remarks as it deems appropriate. It therefore requests the Government to refer to these comments, as well as to reply to the 1990 Observation of the Committee, in its forthcoming report on the Convention.

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

The Committee notes the information supplied by the Government in its last report, including the replies to its previous comments. Following its examination of Act No. 18620 of 6 July 1987 respecting the Labour Code, which repeals the previous provisions on which its earlier comments had been based, the Committee notes that the divergencies that it had pointed out with certain provisions of the Convention persist in the new Labour Code.

Article 2(b) of the Convention. Section 39 of Legislative Decree No. 2200 of 1978 (as amended by Act No. 18018 of 10 August 1981 and Act No. 18372 of 12 December 1984), which limited the working week to five days (nine hours 30 minutes per day) and the working day to ten hours per day, while maintaining the working week at 48 hours, was considered to be contrary to this provision of the Convention, which sets the maximum limit of nine hours on the working day in public or private industrial undertakings. Section 27 of the new Labour Code contains identical provisions. The Committee notes that the division of the working week into five days, which results in working days of nine hours and 36 minutes, is recompensed by an additional weekly rest day. It also notes the Government's concern not to establish a difference in the legal treatment of industrial workers and those in commerce, for whom the working day may reach ten hours. However, the Committee considers that there remains a discrepancy with Article 2(b) of the Convention and requests the Government to take the necessary measures to prevent the working day exceeding by 30 minutes the nine hours admitted by this provision of the Convention.

Article 6. Section 42 of Legislative Decree No. 2200, which permitted the parties to agree that up to two additional hours daily could be worked in jobs which, by their nature, do not harm the health of the workers, and section 43(2), which authorised as overtime hours those hours worked in excess of the established working hours, with the employer only being aware of them, had been considered to be contrary to the provisions of this Article of the Convention. In fact, Article 6, paragraph 1(b) lays down that temporary exceptions to normal working hours may be permitted to allow establishments to deal with exceptional cases of pressure of work, and Article 6, paragraph 2, lays down that the maximum of additional hours that may be authorised must be fixed in advance. The Committee here again notes that sections 30 and 31 of the new Labour Code allow these earlier discrepancies to persist. It requests the Government to take the necessary measures so as to only permit exceptions to normal working hours in the cases set out in the Convention and to fix in advance the maximum number of additional hours that may be authorised. It points out that a limit of two additional hours per day without a reasonable annual limit could give rise to abuses and would be definitely contrary to the spirit in which the Convention was formulated.

The Committee trusts that the Government will take measures in the near future to bring its legislation into full conformity with the Convention.