Practical Advice on the Chilean Employee Handbook
What is a Reglamento Interno?
Chilean companies are required to have an employee handbook (Reglamento Interno) that covers health, safety, and internal policies. Within the employee handbook, there are two areas that must be covered –
The first is what is known as the Reglamento Interno de Orden, Hygiene, y Seguridad (Internal Regulations on Organization, Health, and Safety), which is defined and regulated by the Chilean Labour Code and required for any company that has 10 or more permanent workers.
The second is established by the Industrial Accidents and Occupational Hazards in the Workplace law. Every company should have a Reglamento Interno that references this, regardless of how many workers it has.
What is included in the Reglamento Interno?
According to Chilean law, the Reglamento Interno has certain minimal requirements that need to be included:
- Start and finish times for work, shift schedules, etc.
- Times for breaks during work hours;
- Salaries and compensation;
- Time and place of salary payments;
- Obligations and work place prohibitions for the workers;
- Appointment of company positions (Ex. Heath and Safety Officer), before which the workers can raise their petitions, complaints, doubts, and suggestions, and in the case of companies with more than 200 workers, a registry containing these appointments;
- Special regulation pertaining to the different kind of activities and work, according to the workers’ age and gender, and to the necessary adjustments and support services that allow a disabled or impaired worker to perform adequately at work;
- The way in which employees can check compliance of social security laws;
- Regulations regarding accident prevention, hygiene, and security;
- Applicable sanctions for employees; which may only consist of verbal and/or written warnings, or a fine of up to 25% of the worker’s daily pay.
- Procedures for the aforementioned sanctions;
- Procedures, safety measures, and sanctions, regarding sexual harassment complaints; and
- Procedures regarding complaints about non-equal pay amongst men and women who are currently doing the same work.
Can the company include other internal policies?
The content of the Reglamento Interno depends not only on what is established by law but also on the specific circumstances of the company. Other policies included could be dependent on the industry they work in, policies from the head office, etc.
Sexual Abuse and Harassment Policies:
The Reglamento Interno must include some specific information on sexual abuse and harassment policies. To start, the definition of sexual harassment as defined by the labor code must be included. The company must also outline the internal procedures that would be followed if a complaint is filed and what safety measures would be put in place for the people involved while an investigation takes place. Initially, the investigation can be internal, or the company can have it investigated by the labor office. After the investigation, a report must be issued and depending on the findings then changes would have to be introduced and updated in the Reglamento Interno.
Abuse and Harassment in the Workplace:
Labor harassment is not strictly required by law to be included in the Reglamento Interno, but it is recommended to include it. To start, a definition of labor harassment provided by the Labor Code should be included, as well as the safety measures, the procedures for investigation, and the explicit sanctions that could be applied.
Criminal Liability of the Company:
This is a developing area in Chilean law and there are changes from the last few years ensuring companies can face criminal liability if their employees when acting for the company commit certain criminal offenses. The ones included in the law are asset laundering, financing of terrorism, bribery, and the handling of stolen goods. It is good practice for companies to include this in their Reglamento Interno. It should also include preventive measures, procedures of how to report, outline of the investigation procedures, and what sanctions the workers could face if they do not comply with the companies policies.
It’s also becoming more common among companies to have anti-bribery or anti-corruption policies. This includes the regulation of donations to political parties, donations to charities, preferential treatment, presents, and favors. This is particularly important as there are new laws in place that force companies to show they are taking all available steps to address this issue.
Warnings and Reprimands to the Worker:
Within the Reglamento Interno, the company can determine what sanctions are appropriate for violating specific policies. To be able to enforce these sanctions, the warnings must be explicitly determined in the handbook. The law also states that the applicable sanctions can only consist of:
- Verbal warnings
- Written warnings
- A fine up to 25% of the worker’s daily pay.
What controls can be put in place to enforce the employee handbook?
It is important that all measures used to control the norms found within the employee handbook are appropriate and proportional. They must follow Chilean labor laws and be enforced in a general way across the whole workforce that respects the workers’ rights.
For example, with drug or alcohol testing. If an employer suspects a worker is using drugs or alcohol, he cannot perform a drug or alcohol test on one specific person. If the employer wishes to have drug or alcohol testing, it must be done by a) performing a company-wide test, simultaneously for all workers, or b) by working out a system in which the workers to be tested are selected at random. All these policies, including the random selection system, must be established and expressly described in the Reglamento Interno if the employer wants to enforce them.
What are the steps to implement the Reglamento Interno?
A copy of the code must be sent to the Health Ministry and to the Labor Office within 5 days from the date the code comes into effect.
Any modifications to the Reglamento Interno must be informed at least 30 days before the changes come into effect. This is done by handing out copies of the Reglamento Interno, and posting them in at least two visible places in the workplace. A copy of the Reglamento Interno must also be submitted to the worker’s union, if there is one, to the personnel delegate, and to the Comité Paritario (the Joint Committee).
Implications when the internal policies are part of the individual work contract:
The Reglamento Interno itself does not need to be agreed upon between the employer and the workers; it is drafted and can be modified by the employer, and only has to adhere to some legal standards. However, if the policies are included in the work contract, then both parties need to agree which means that any modifications must be agreed upon between both parties (they are now of a contractual nature), and cannot come from the employer alone.
For this reason, our recommendation is that it is not included as part of the work contract since it can become quite burdensome to modify for each employee.
Dealing with objections to the Reglamento Interno
The staff delegates, union organizations, and individual workers can object the to rules or codes which they deem unlawful, by presenting it before the Labor Office or the respective health authority. These public entities can then demand modifications to the Reglamento Interno if they also deem the rules or codes unlawful. Additionally, they can also demand that the company includes the minimum legal requirements if it lacks one or more of them.
What Sanctions can an employer face?
If the company does not have a Reglamento Interno, and should, the Labor Office can penalize or sanction said company with a fine. Also, the employer cannot enforce sanctions, penalizations, or procedures, if there is no Reglamento Interno in place. Lastly, companies working in the industrial sectors such as mining will often be asked by their clients to provide their Reglamento Internoas part of the tender or rewarding process for new contracts.
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