References
Labor Code [LC], consolidated version, DFL No. 1, as last amended by Act 20396 (Ley 20396) of 23 November 2009 (Código del Trabajo, texto refundido, coordinado y sistematizado - available in Spanish only)
Date:
21 Aug 1970;
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Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: civil/public servants, agricultural workers, police, army, judiciary, diplomats
See art. 1 LC: the LC does not apply to civil servants employed in centralized or decentralized state administration, the National Congress and Judiciary, or to workers in state undertakings or institutions or workers employed in bodies to which they contribute, participate or are represented, provided that such workers are governed by a special law (i.e. the Administrative Statute, Act No. 18834).
The provisions of the LC apply to those aspects not regulated by these special statutes, such as the area of maternity protection.
Independent workers are also excluded (Art. 8), except where the LC refers specifically to them.
Services rendered by persons who work either directly with the public, or intermittently or sporadically at home, are not considered as involving employment contracts, and therefore fall outside the LC (Art. 8). Graduates of institutions of higher education or professional technical training programmes, for a specified period, are also excluded while they are fulfilling work-experience requirements.
Contracts for apprentices, agricultural workers, stevedores, seafarers and casual port workers, and workers in private homes (domestic workers), artists and people working in the entertainment industry, sports professionals and related jobs and pilots and crew members are covered as special contracts under Title II of the LC.
Note that with respect to termination, there are specific rules for (161 LC):
- domestic staff;
- persons occupying positions of trust; and
- persons representing the employer, such as managers, assistant managers, agents or other types of representatives, provided that they have general administrative competence.
FTC regulated: Yes
Valid reasons for FTC use: no limitation
: 2
Art. 159 LC stipulates that fact of working after the expiration of a FTC transforms the FTC in an open-ended contract. The same effect is produced by the second renewal of a FTC.
Maximum cumulative duration of successive FTCs: 12month(s)
Art. 159 LC: Fixed-term contracts may be made for a maximum duration of one year (art 159 LC). One renewal is possible, provided that the maximum cumulative duration does not exceed 1 year.
As an exception, a FTC may last up to 2 years in case of managers or individuals with a professional or technical degree. One renewal is possible, provided that the maximum cumulative duration does not exceed 2 years.
If a worker is employed intermittently for 12 months or more under more than 2 FTC within a period of 15 months (period that starts to count from the first appointment of the worker), there will be a legal presumption of an open ended contract..
Maximum probationary (trial) period (in months):
no limitationNo provision on probationary period in the Labour Code.
Valid grounds (justified dismissal):
Prohibited grounds:
Workers enjoying special protection:
Definition of collective dismissal (number of employees concerned) No statutory definition of collective dismissal. <br/>However, the LC stipulates that an employer can terminate a contract on the grounds of requirements of the undertaking, establishment or service, resulting from streamlining or modernization activities, reduced productivity, changes in market or economic conditions which impose the need to lay off <b>one or more workers</b>.
Art. 161 (1) LC.
Notification to the public administration No
Notification to trade union (workers' representatives) Yes
Art. 162 LC: notification to the Labour Inspectorate at least 30 days in advance. Notification shall take place prior to any dismissal (concerning 1 or more workers) based on operational requirements of the undertaking as defined in art. 161 (1) LC.
Notification to workers' representatives: No
Approval by trade union (workers' representatives) No
Approval by workers' representatives No
Priority rules for collective dismissals (social considerations, age, job tenure) No
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) No
Priority rules for re-employment No
:
- Upon dismissal without cause (by way of desahucio), the workers are entitled to a statutory severance pay -Indemnización legal por años de servicio - (unless an individual or collective agreement is made with more favourable terms) equivalent to 30 days of the last monthly remuneration earned, for each year of service worked and fraction greater than six months. The upper limit is 330 days for workers with a contract in force for one year or more (sec. 163, LC). This applies to persons occupying positions of trust and persons representing the employer having general administrative competence. However domestic workers are entitled to a different indemnity.
- The same amount is payable to a worker whose contract is terminated on the basis of the requirements of the undertaking (see below redundancy payment)
- Upon termination of employment, regardless of the reason for termination, domestic workers are entitled to an indemnity to be funded by the employer's contributions to an insured pension fund equivalent to 4.11% of the monthly remuneration. The employer's contributions shall be paid for a period of 11 years which shall run from obligation to pay such contribution shall be for a period run from 1 January 1991 or the start date of employment, whichever is later (art. 163 LC).
- There is a possibility for an agreement on a substitute termination indemnity (see below - "Notes / Remarks")
Note that dismissals based on the worker's conduct (art. 160 LC) do not give right to severance pay.
Similarly severance pay is not payable in the event of termination upon expiry of the agreed term of the contract or completion of the service for which the contract was made, termination due to force majeure or unforeseen event, resignation, mutual agreement, resignation or the death of the worker.
: 0 day(s)
: 0 day(s)
: 30 day(s)
: 60 day(s)
: 120 day(s)
: 150 day(s)
: 300 day(s)
: 330 day(s)
:
Same as severance pay.
*Art. 163 LC foresees that, in case of dismissal for the economic reasons listed in art. 161 LC, dismissed workers who have been working for at least 1 year are entitled to severance pay. This indemnity (unless an individual or collective agreement is made with more favorable terms) shall amount to 30 days of the last monthly remuneration earned, for each year of service worked and fraction of a year greater than six months. The upper limit is 330 days for workers with a contract in force for one year or more (see art. 163 LC).
*See also substitute indemnity below under "Notes / Remarks"
: 0 day(s)
: 0 day(s)
: 30 day(s)
: 60 day(s)
: 120 day(s)
: 150 day(s)
: 300 day(s)
: 330 day(s)
mine workers: No
managerial / executive positions: No
police: Yes
Existing arbitration: No