New working day in Chile: keys to the rulings marking the implementation of the 42-hour working day

Two important opinions of the Labour Directorate, both issued on 16 April 2026, clarify certain important aspects related to the exclusion of the limitation of working hours and the implementation of the new gradual reduction of ordinary working hours, which comes into force on 26 April 2026.

I.- Opinion 252/20 reviews and, where relevant, reconsiders the current administrative doctrine on the exclusion of the limitation of working hours provided for in article 22, paragraph 2 of the Labour Code, in particular with regard to the distinction between subordination and dependence and the concept of immediate superior supervision, the impact of technology in determining the appropriateness of the exclusion of working hours and the importance of the principle of the primacy of reality.

In this respect, it specifies the need to distinguish between the link of subordination and dependence - an essential element of the employment contract - and immediate superior supervision - a cause for inclusion in the controlled working day regime or whose absence makes the exclusion appropriate, since the rule does not exclude those who do not have an employer or who are not subordinate, but those who, while having an employment relationship, carry out functions whose nature prevents or makes direct supervision of their execution inappropriate.

The appropriateness of the exclusion of the limitation of working hours must be assessed according to the real nature of the functions performed and the degree of effective autonomy with which they are carried out, the determining criterion being the absence of immediate superior supervision, understood as the absence of functional and direct control over the form and timeliness of the work.

With regard to subordination and dependence, which imply the existence of the employment relationship and the integration of the worker in the company, it reiterates that this is expressed in the worker's submission to the employer's instructions, compliance with internal regulations, integration in the company's productive organisation and the employer's disciplinary power, among other specific manifestations.

For its part, in relation to immediate superior control, which is the specific way in which supervision is exercised over the work performed, it states that it refers to the possibility of exercising direct and functional control over the way and the opportunity in which the worker performs his or her work, the determining factor, in practice, being the nature of the work itself.

The distinction is relevant in that a worker may be fully subordinate to his employer and, at the same time, not be subject to immediate superior control over how and when he actually performs his work. and also reiterates that the latter must be assessed restrictively, given its exceptional nature and the modifications that reduced the universe of workers excluded from the limitation of working hours, on the basis of the primacy of reality and in accordance with the actual nature of the functions performed and the specific way in which these are supervised.

However, despite the restrictive criterion of interpretation and the fact that geographical hypotheses of exclusion to the limitation of working hours have been eliminated, they do not imply modifying the substantive standard that defines when there is immediate superior supervision, which continues to depend on whether there is functional and direct control over the form and timeliness of the work, and not on whether the employer has technological tools that, in the abstract, could allow him to exercise this control.

Therefore, in each specific case, it must be verified whether the available control mechanisms translate into direct, immediate and effective oversight, supervision or superior functional control. In this sense, the mere existence of monitoring technologies, attendance registration mechanisms, technological tools, reporting systems, traceability or coordination of work, etc. does not in itself constitute immediate superior control, when such mechanisms do not imply direct and functional control over the form and timeliness of the provision of services. Likewise, the mere reporting of results, even if it is periodic, does not amount to immediate superior control, nor does it, by itself, rule out or affirm that the exclusion of working hours is appropriate.

Thus, the legal standard requires that the qualification of the appropriateness of the exclusion should not be made in the abstract or on the basis of formal elements, but on the basis of a concrete analysis of the nature of the functions that the worker actually performs, thus requiring a control that is both functional - referring to the content and form of execution of the work - and direct - exercised on the execution itself, not only on its results.

In this context, the mere contractual denomination, the position assigned or the existence of periodic reports are not sufficient, by themselves, to constitute the hypothesis of paragraph 2 of Article 22, and the reporting of results, even periodically, does not satisfy this standard. Nor does the existence of monitoring systems, management platforms, electronic records or traceability tools, etc., constitute immediate superior control, unless these mechanisms effectively imply the functional and direct control over the form and timeliness of the execution of the tasks required by law.

This analysis should consider, among other elements: (i) whether the worker organises his or her time and work methods autonomously; (ii) whether his or her work is evaluated by results or by compliance with the timetable; (iii) whether there is a superior who directly supervises the manner and timeliness of the execution of his or her tasks; (iv) whether the nature of the position implies representation of the employer or autonomous decision-making; and (v) whether the existing control mechanisms affect the execution of the work or only its results.

In this sense, it is relevant to complement the previous doctrine by specifying that technology does not exclude the possibility of immediate superior control, but neither does it automatically presume it, and everything will depend on the specific way in which control is exercised over the provision of the services of the worker in particular.

II.- Opinion 253/21, which reviews and, where appropriate, reconsiders the current administrative doctrine on the implementation of the gradual reduction of working hours regulated by the 40-hour law, establishing a supplementary rule in the absence of an agreement between the parties to the employment relationship, which requires an effective and operative reduction of working time, and confirms the non-retroactivity of previous agreements, which requires a new agreement to be concluded for this stage.

In this respect, its main considerations are:

• The law favours, as the main mechanism for implementing the reduction of the maximum working week, the agreement between the parties or with the trade union organisations. It points out that the legislator has not established specific requirements for such an agreement, its negotiation mechanisms or the way in which it is to be established or accredited, and that the employer must be able to demonstrate by any suitable means the existence of real instances of interaction and negotiations with the workers or their trade union organisations, even if it has not been possible to reach a formal agreement.
• In the absence of an agreement, the law establishes a supplementary mechanism to implement the reduction of two hours per week, from 44 to 42 hours. In the case of five-day working days, this reduction must be implemented by reducing the working week by one hour at the end of the working day on two different days. In the case of working days spread over six days, the reduction must be carried out by reducing the working day by fifty minutes on two different days and by a fraction of twenty minutes on a third day, with the employer determining the days on which this reduction is to take place, in all cases respecting the legal limits, the agreed weekly distribution of the working day and the spirit of the regulation, in that it aims to ensure that the total number of hours to be reduced, at the end of the implementation of the 40-hour law, is distributed proportionally between the different days that make up the working week.
• In the case of workers who, on 26 April 2026, have a working week of less than 44 hours and more than 42 hours, the reduction to reach this limit must be distributed by applying a maximum daily reduction of one hour for a five-day working week and 50 minutes for a six-day working week. In both cases, the remainder that does not complete this unit must be applied on a different day, without being accumulated to the day that already carries the rebate.
• In the event that there was only agreement at the previous stage (April 2024, when the reduction from 45 to 44 hours per week was applied) and there is no agreement at this milestone, the former cannot be extended to the present stage, unless it is clear from its wording.

In such a case, in the absence of agreement, the supplementary rule is activated for this stage, regardless of the way in which the agreement would have distributed the previous reduction, and it is not possible to reopen or unilaterally modify what was agreed for the first stage.