Labor and Electoral Modifications for the Municipal and Regional Elections of 2024
dnpv2024-10-22T15:33:49-03:00Source: DT
SUBJECT:
Law No. 21,693 that modifies various legal bodies to improve the electoral system and hold municipal and regional elections on October 26 and 27, 2024. Mandatory holiday on Sunday, October 27 for workers in article 38 N7 of the labor code. Permission to vote or excuse oneself and perform the functions indicated.
SUMMARY:
1) Saturday, October 26, 2024, the date on which the election process for Mayors, Regional Governors, and Regional Councilors begins, is a business day, and therefore, employees must comply with the work day agreed with their employer, without prejudice to their right to be absent from work for a period of three hours to go to vote or to excuse themselves from participating in the vote, without this implying a reduction in their remuneration, as well as to be granted the necessary permits to perform the functions of a table member, member of the Scrutinizing Board, or Delegate of the Electoral Board.
2) Sunday, October 27, 2024, constitutes a mandatory holiday for workers included in article 38 No. 7 of the Labor Code, provided that they work in commercial centers or complexes managed under the same corporate name or legal personality.
3) Workers who are not in the previous situation and who are legally exempt from rest on Sundays and holidays by virtue of the aforementioned article 38 of the Labor Code and who, therefore, are required to provide services next Sunday, October 27, 2024, have the right to be absent from their work
for a period of three hours to go to vote or to excuse themselves from participating in the vote, without this implying a reduction in their remuneration, as well as to be granted the necessary permits to perform the functions of table member, member of the Scrutinizing Board or Delegate of the Electoral Board.
4) The modifications introduced by Law No. 21,693 to the Labor Code, Law No. 18,700 and other legal bodies do not impose on the worker the obligation to make use of the right to vote or to excuse himself from his work on a given day of the electoral process, so it must be concluded that the worker may freely exercise them on any of the two days on which the voting will take place.
5) The duration of the rest period for workers during the legal holiday corresponding to the election process that will take place on Sunday, October 27, 2024 is governed by the provisions of section 1 of article 36 of the Labor Code, and must begin no later than 9:00 p.m. on Saturday, October 26, 2024 and end at 6:00 a.m. on Monday, October 28, unless the respective workers are assigned to rotating work shifts, in which case they may provide services in the period between 9:00 p.m. and 12:00 a.m. on October 26, or between 12:00 a.m. and 6:00 a.m. on October 28, when the respective shift falls on said periods.
BACKGROUND:
1) Pass N°1160, of 10/14/2024, of the National Director of Labor.
2) Email of 10/11/2-24 of the Head of the Legal Reports and Opinions Unit.
SOURCES:
Law 21.693, of 08/26/24 that modifies various legal bodies, to improve the electoral system and hold the municipal and regional elections of the year 2024 in two days.
Decree with Force Law N2 of the Ministry of the General Secretariat of the Presidency,
of 09/06/2017 that establishes the coordinated and systematized revised text of Law N18.700 on popular votes and scrutiny of 05/06/1988.
3) Labor Code, articles 35, 63 and 38.
CONCORDANCES:
Opinions Nos. 1449/15 of 05/12/2021; 3175/33 of 11/25/2020; 5141/87 of 10/18/2016; 3115/53 of 06/08/2016: 4979/67 of 12/10/2009; 2225/86 of 04/15/1996. SANTIAGO, October 15, 2024.
FROM: NATIONAL DIRECTOR OF LABOR
TO: HEAD OF INSPECTION DEPARTMENT (S)
In view of the legal modifications introduced by Law No. 21,693, of 08/26/2024, which modifies various legal bodies, to improve the electoral system and hold the municipal and regional elections of the year 2024 in two days, on Saturday, October 26 and Sunday, October 27, and in accordance with the provisions of Decree with Force of Law No. 2 of 09/06/2017, which establishes the coordinated and systematized text of Law No. 18,700 constitutional organic law on popular votes and scrutiny, of 05/06/1988, it has been deemed pertinent that this Labor Directorate issue a statement about the scope in labor matters of the aforementioned electoral event.
In this regard, I hereby inform you of the following:
The fourth transitory article, letter c), paragraphs 2 and 3 of Law No. 21,693, which modifies various legal bodies to perfect the municipal and regional elections of the year 2024 in two days, provides in the pertinent part:
“The voters who are designated as members of the voting tables must perform said functions on Saturday and Sunday.
The application of the electoral holiday contained in number 7 of article 38 of the Labor Code, as well as that established in article 180 of Law No. 18,700, Constitutional Organic Law on Popular Voting and Scrutiny, will be applicable only for Sunday.”
For its part, the cited article 180 of Law No. 18,700 on popular votes and scrutiny, formerly article 169, establishes in its first paragraph:
“The day set for the holding of elections and plebiscites shall be a legal holiday.”
In turn, paragraph 1 of article 35 of the Labor Code provides:
“Sundays and those days declared by law to be holidays shall be days of rest, except with respect to activities authorized by law to work on those days.”
From the analysis of the above-mentioned regulations, it follows that, pursuant to the provisions of the fourth transitory article of Law No. 21,693, during the municipal and regional elections to be held in two days during the year 2024, only the one that falls on a Sunday will be considered a legal holiday, a distinction that is expressly extended to workers exempt from Sunday and holiday rest who perform activities governed by numeral 7 of article 38 of the Labor Code.
Consequently, Saturday, October 26, 2024, the first day of the electoral process in reference, will be a working day and therefore it will be up to the employees to provide services in accordance with the workday agreed with their employer, without prejudice to their right to demand that the employer grant them the necessary permits to go to vote or to excuse themselves before the Carabineros of Chile, as will be explained later. On the contrary, Sunday, October 27, 2024, will be a legal holiday and therefore a day of rest in all the municipalities and regions of the country.
Having clarified the above, it is necessary to analyze the scope of the aforementioned regulations in the labor field.
-.1 Regarding the duration of the work break during the legal holiday of Sunday, October 27, 2024, it should be noted that section 1 of article 36 of the Labor Code provides:
“The rest and the obligations and prohibitions established in this regard in the two previous articles will begin at the latest at 9 p.m. on the day before the Sunday or holiday and will end at 6 a.m. on the day after these, except for the time changes that occur due to the rotation in the work shifts.”
For its part, the repeated administrative jurisprudence of this Service contained in Opinions No. 4979/67 of 12/10/2009 and No. 1449/15 of 05/12/2021 has indicated that the start and end times of the rest indicated in section 1 of article 36 of the Labor Code are applicable both to workers affected by the normal regime of section 1 of article 35 of the Labor Code transcribed above, as well as to workers exempted from Sunday and holiday rest, in accordance with article 38 of that legal body. The same doctrine adds that, in both cases, the weekly rest must begin at 9:00 p.m. on the day before the Sunday or holiday or compensatory rest, as the case may be, and end at 6:00 a.m. on the day after these, without prejudice to the time changes that could occur in the case of workers with rotating shifts, who could provide services in the period between 9:00 p.m. and 12:00 a.m. on the day before the rest, or between 12:00 a.m. and 6:00 a.m. on the day following it, when the respective shift falls within said periods.
In accordance with the above, the duration of the rest corresponding to the electoral process that will take place on Sunday, October 27, 2024 is governed by the provisions of section 1 of article 36 of the Code
Labor, which must begin no later than 9:00 p.m. on Saturday, October 26, 2024 and end at 6:00 a.m. on Monday, October 28, unless the respective workers are subject to rotating work shifts, which affect the rest hours established by the aforementioned legal norm, in which case they could provide services in the period between 9:00 p.m. and 12:00 a.m. on October 26, or between 12:00 a.m. and 6:00 a.m. on October 28.
2-. Regarding the situation of workers exempted from Sunday and holiday rest, in accordance with article 38 of the Labor Code, especially those governed by numeral seven of said precept, since,
they are expressly referred to in the fourth transitory article of Law No. 21,693, it should be noted that the cited legal norm provides:
“The following are excepted from the provisions of the previous articles:
7-. in commercial and service establishments that serve the public directly, with respect to workers who provide such service and according to the modalities of the respective establishment. However, this exception will not be applicable to workers in commercial centers or complexes administered under the same corporate name or legal personality, in relation to the legal holiday established in article 169 of Law No. 18700 and in article 106 of the Organic Law of Municipalities. and (….).”.
From the aforementioned provision it follows that, among others, workers who work in commercial and service establishments that directly serve the public are exempt from the Sunday and holiday rest established in article 35 of the Labor Code, as long as they provide such service.
It is also inferred that the aforementioned provision establishes a counter-exception to the general regulations that govern said workers, insofar as it prohibits the provision of services on the days in which the elections referred to in the same regulation must be carried out.
As a consequence of what has already been stated, the reiterated doctrine of this Service, contained among other pronouncements in Opinions No. 3175/33 of 11/25/2020; No. 5141/87 of 10/18/2016; No. 3115/53 of 06/08/2016 and Ordinary No. 4061 of 08/04/2016, has resolved that the aforementioned counter-exception translates into the fact that, by express mandate of the legislator, the days on which elections must be held constitute mandatory days of rest for workers who are exempt from Sunday and holiday rest by virtue of the seventh numeral of article 38 of the Labor Code, a conclusion that in accordance with the provisions of the fourth transitory article of Law No. 21,693, which establishes as a holiday only the Sunday of voting, is fully applicable to the electoral process to be held on Sunday, October 27, 2024, with respect to those workers who meet the following cumulative requirements:
a) That they work in commercial centers or complexes;
b) That said commercial centers or complexes are managed under the same corporate name or legal personality;
c) That the referred commercial centers or complexes are located in one of the communes and/or regions in which the electoral process is to be developed.
In relation to the requirement stated in letter a), it should be noted that, in accordance with the institutional doctrine supported, among others, in Opinion
No. 2225/86 of 04/15/1996, which established the concept of commercial centers or complexes for the purposes provided for in article 203 of the Labor Code, a provision that uses the same expression, they should be understood as:
.” the set of commercial premises or establishments, generally close to each other and organized under a common technical or financial management, where retail trade articles are sold.”
Thus, applying the doctrinal criteria stated above, it is necessary to agree that Sunday, October 27, 2024, the date on which the second day of elections for Mayors, Councilors, Regional Governors and Regional Councilors will be held, should be considered as a mandatory rest day for workers included in numeral 7 of article 38 of the Labor Code, as long as they work in commercial centers or complexes managed under the same corporate name or legal personality, which are located in the communes and/or regions in which the aforementioned elections are to be held, for which reason, they cannot be required to provide services on said day.
On the other hand, with regard to workers who are not included in the situation described above, that is, those who do not provide services in the commercial centers or complexes referred to in previous paragraphs, but who, in accordance with article 38 of the Labor Code, are exempt from rest on Sundays and
holidays and therefore, they must perform their duties during Sunday, October 27, 2024, it is necessary to consider the provisions of article 165 of Law No. 18,700, which states:
“No authority or employer may require any service or work that prevents voters from voting.
In those activities that must necessarily be carried out on the day an election or plebiscite is held, workers may be absent for three hours, so that they can vote or excuse themselves, as appropriate, without deduction from their wages.”
In this regard, given the modifications introduced by article 1 No. 21, letters a) and b) of Law No. 21,693 of 08/26/2024, in Law No. 18,700 on Popular Voting and Scrutiny, which increases to three hours the permission of workers to vote or excuse themselves, as appropriate, it should be noted that the existing doctrine on the matter contained among other pronouncements, in the aforementioned Opinions Nos. 3175/33 of 11/25/2020 and 3115/53 of 06/08/2016, according to which, the worker has the right to be absent from work on the day that elections are held to vote, should also be understood as referring to the new three-hour permission to excuse oneself from voting, without the absence of the employee during that period of time (for one purpose or another) being able to mean a reduction of his/her remuneration, as a result of the aforementioned legal modification.
Likewise, the criterion contained in Opinion No. 1449/015, 05/12/2021, which indicates that there is no legal inconvenience for the parties to mutually agree on a time greater than the legal minimum, should be understood as referring to the three-hour permit both to vote and to excuse themselves from doing so.
In the same vein, regarding the day that the worker may exercise his right to vote or excuse himself from his work during the development of the electoral process to be held on October 26 and 27, 2024, it should be noted that the modifications introduced by Law No. 21,693, to the Labor Code, to Law No. 18,700 and other legal bodies, do not impose on the worker the obligation to make use of these rights on a given day of the process, so it must be concluded that the worker may freely exercise them on any of the two days on which the voting will take place.
The above is corroborated by the history of Law No. 21,693, which, in the minutes of the presentation of the President of the Board of Directors of the Electoral Service of Chile, dated 05/07/2024 before the Government Commission in Session 18, Legislature 372, page 20, states the following:
“Next, referring to the technical foundations of the proposal for voting in two days, he pointed out that for the Electoral Service the main thing is that the fifteen million voters obliged to vote have the best conditions to exercise their right to vote.
He stressed that it is better for the voter to be able to choose between two days, Saturday or Sunday, to go to vote, instead of only having one day. Likewise, he considered that the option of voting in two days represents the solution to the problem of avoiding
long lines, delays and crowds, in addition to being a safe option that has been successfully tested on previous occasions.”
Furthermore, in the same sense, it is worth highlighting the speech in the chamber on 31.07.2024, Session 40, Legislature 372, by the Honorable Senator Juan Ignacio Latorre Riveros, which appears on page 487 of the History of Law No. 21,693, which reads as follows:
“It is an achievement of workers to participate in democracy and have an unwaivable holiday. And this is compatible, in a two-day election, at the end of October, with a Saturday that will not be an unwaivable holiday but where there will be authorized time to vote, if they want to do so that day, and with Sunday, which remains an unwaivable holiday. It is something that was not considered as such
previously and today it becomes an achievement that is valued again after the Government’s veto.”
3.- Finally, in relation to the situation of workers who are designated to perform the functions of voting table members, members of counting boards or delegates of the electoral board, article 166 of the aforementioned Law No. 18,700 is applicable, which is contained in DFL No. 2 of 06.09.2017, which provides:
“Employers must grant the necessary permits, without deduction of wages, to workers who are designated as voting table members, members of counting boards or delegates of the electoral board.”
In relation to this rule, the administrative doctrine of the Service, contained in the aforementioned pronouncements, has resolved that it is appropriate to grant employees permission for as long as necessary for the correct performance of the same, and it must be specified that pursuant to the provisions of letter c) of the fourth transitory article of
According to Law No. 21,693, the permit will cover both days of the electoral process in the case of workers designated as members of polling stations.
Therefore, in accordance with the above paragraphs, the permits established in the aforementioned legal regulations are fully applicable to the electoral process to be held on both Saturday, October 26 and Sunday, October 27, 2024, since the prerogatives they contemplate correspond to guarantees that have been expressly enshrined by the legislator in order to protect the adequate participation of workers in the electoral processes.
Consequently, on the basis of the aforementioned legal provisions.
In view of the institutional jurisprudence invoked and the considerations set forth, I hereby inform you of the following:
1) Saturday, October 26, 2024, the date on which the election process for Mayors, Councilors, Regional Governors and Regional Councilors begins, is a business day, and therefore, employees must comply with the work day agreed with their employer, without prejudice to their right to be absent from work for a period of three hours to go and vote or to excuse themselves from participating in the vote, without this implying a reduction in their remuneration, as well as granting them the necessary permissions to perform the functions of a polling station member, member of the Scrutinizing Board or Delegate of the Electoral Board.
2) Sunday, October 27, 2024, constitutes a mandatory holiday for workers included in article 38 No. 7 of the Labor Code, provided that they work in commercial centers or complexes managed under the same corporate name or legal personality.
3) Workers who are not in the previous situation and who are legally exempt from rest on Sundays and holidays by virtue of the aforementioned article 38 of the Labor Code and who, therefore, are required to provide services next Sunday, October 27, 2024, have the right to be absent from their work for a period of three hours to go to vote or to excuse themselves from participating in the vote, without this implying a reduction in their remuneration, as well as to be granted the necessary permits to perform the functions of table member, member of the Scrutinizing Board or Delegate of the Electoral Board.
4) The modifications introduced by Law No. 21,693 to the Labor Code, Law No. 18,700 and other legal bodies do not impose on the worker the obligation to make use of the right to vote or to excuse himself from his work on a given day of the electoral process, therefore it must be concluded that the worker may freely exercise them on any of the two days in which the voting will take place.
5) The duration of the rest of the workers during the legal holiday corresponding to the electoral process that will take place on Sunday, October 27, 2024 is governed by the provisions of section 1 of article 36 of the Labor Code, and must begin no later than 9:00 p.m. on Saturday, October 26, 2024 and end at 6:00 a.m. on Monday, October 28, unless the respective workers are affected by rotating work shifts, in which case they could provide services in the period between 9:00 p.m. and 12:00 a.m. on October 26, or between 12:00 a.m. and 6:00 a.m. on October 28, when the respective shift falls on said periods.
More information: https://www.dt.gob.cl/legislacion/1624/articles-126781_recurso_pdf.pdf