Recently, the analysis of the substitute text for legislative file No. 21,182 which seeks to amend articles 136, 142, 144, and 145 of the Labor Code, thus enabling the establishment of the workday known as ” 4×3”, has become very relevant.

Now, to better understand the implications of this amendment, it is necessary to know and understand how the ordinary working day is currently regulated. According to our Labor Code, the Ordinary Working Day is 8 hours a day with a maximum of 48 hours a week when working during the day, and 6 hours a day with a maximum of 36 hours a week when work is performed at night.

That said, any shift that exceeds these limits is considered an extraordinary shift, which must be exceptional and must be paid at a value of 1.5 of the hours of the ordinary shift value.

On the other hand, what the proposed amendment to the Labor Code establishes is the possibility that in addition to the previously indicated shifts, an extended ordinary shift of up to twelve hours per day can be established up to a maximum of four days and with three continuous days off, in the event that they work during the day or twelve hours per day for a maximum of three days and with four days of continuous rest.

This project is aimed at those companies that, due to their line of business, require 24-hour production cycles, so that employers can have staff for a longer period. However, it is important to clarify that the employer cannot force the worker to submit to this shift, this must be done by mutual agreement, meaning, the worker must decide whether or not they wish to submit to this type of shift.

Now, knowing and understanding more about this work shift, different experts and institutions have pointed out remaining questions about it. Among these, and probably one of the most notorious is that with the application of this shift, overtime work would be “ordinary” because as established previously, ordinary shifts are a maximum of 8 or 6 hours, reason why an extended shift of 12 hours would convert those extra hours into ordinary hours.

In other words, these hours would not be paid as overtime since they would be part of the ordinary working shift. On the other hand, it should be noted that this violates the very nature of overtime itself, since these, by definition, must be worked in exceptional cases. With this new extended shift, the exceptionality of overtime would be lost, in addition to the fact that it would be impossible to work overtime since it is not legitimate to exceed a day of more than 12 hours, reason why workers who take advantage of this modality they would lose the possibility of generating extra income by working overtime.

Another criticism that exists is regarding the value of the hour. It would be affected since for purposes of calculating the value of the hour in an ordinary day, 8 hours is taken as the base, while for the object of the project it will be used as the base of 10 hours, which would obviously mean that the value of the hour is going to be less, and this could have a negative impact on workers in the future.

Another relevant issue to this project is the existence of multiple studies carried out by international organizations showing that working long hours such as the one suggested, is associated with multiple health problems such as depression, and anxiety, among others, which could be really harmful to the health and safety of employees.

Given this scenario, it is difficult to consider that this reform can be applied at least with the wording that it currently has. For this project to become applicable in our legislation, it will be necessary to go through multiple constitutional and legal controls.

On this matter, many experts have exposed that this project could be considered constitutional if it indicates that the possibility of working in an extended 4×3 shift is enabled but recognizes that the hours worked after those established for the ordinary shift (6 or 8 hours) will be considered as overtime and will be paid at a 1.5 value, as established by the law.

This project seeks to innovate and make more flexible a type of shift that currently exists but is applied from anonymity. However, there are still many questions and issues to be solved before this project can be applied as it is currently proposed.

For now, it is necessary to closely monitor this controversial but innovative project to see how it develops and whether it will be applied.

If you require legal advice on this matter, ERP Lawyers is at your disposal with a specialized team in the matter. Feel free to contact us at info@erplawyers.com.