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Law No. 21,643 is published, which modifies the Labor Code and other legal bodies regarding the prevention, investigation, and punishment of workplace harassment, sexual harassment, or violence at work

On January 15, 2024, Law No. 21,643 was published in the Official Gazette, introducing modifications to the Labor Code and other legal bodies concerning the prevention, investigation, and punishment of workplace harassment, sexual harassment, or violence at work. The law, in general terms, introduces the following modifications in labor matters:

  1. The second paragraph of Article 2 of the Labor Code is replaced, establishing that labor relations must always be based on treatment free of violence, compatible with human dignity and with a gender perspective. This implies the adoption of measures aimed at promoting equality and eradicating discrimination based on these reasons. Behaviors such as sexual harassment, workplace harassment, and violence at work are contrary to the aforementioned.

Furthermore, it modifies the definition of workplace harassment by eliminating the "repetition" of the conduct as a requirement for its configuration. This means that workplace harassment can be established even through a single manifestation.

Finally, it introduces the concept of "violence at work," defining it as behaviors that affect workers in the performance of their services, by clients, suppliers, or users, among others.

  1. Amendment to paragraph 12 of Article 154 of the Labor Code is made. In this regard, it is stipulated that the Internal Rules on Order, Hygiene, and Safety must contain, at the very least, the prevention protocol for sexual harassment, workplace harassment, and violence at work. It should also include the procedure and protective measures to be taken concerning the parties involved, as well as the sanctions that will be applied.
  2. A new Article 154 bis is added to the Labor Code, which establishes that employers not obligated to create an Internal Rules document must inform workers, at the time of signing the employment contract, of the prevention protocol for sexual harassment, workplace harassment, and violence at work. The procedure for investigating and punishing such behaviors must also be communicated.

This information must be documented in writing.

  1. Article 211-A of the Labor Code is replaced. This article affirms that workers have the right to demand that the employer adopts and implements measures aimed at preventing, investigating, and sanctioning acts of sexual harassment, workplace harassment, and violence in the workplace.

Likewise, it establishes the obligation for employers to develop and make available to workers the protocol for the prevention of sexual harassment, workplace harassment, and violence at work, through the administrative bodies of Law No. 16,744. This protocol must include, at the very least:

  1. Identification of hazards and assessment of psychosocial risks associated with sexual harassment, workplace harassment, and violence at work, with a gender perspective.
  2. Measures to prevent and control such risks, with measurable objectives.
  3. Measures to properly inform and train workers about identified and assessed risks, as well as the preventive and protective measures that must be adopted. This should include the rights and responsibilities of both workers and the company.
  4. Measures to prevent sexual harassment, workplace harassment, and violence at work, in accordance with the nature of the services provided and the operation of the establishment or company.
  5. Measures to safeguard the privacy and honor of all those involved in the investigation procedures and measures regarding inconsistent complaints in these matters. It should also include mechanisms for prevention, training, education, and protection aimed at ensuring the proper conduct of workers, regardless of the outcome of the investigation.

Finally, it establishes that employers have the duty to report semi-annually the channels maintained by the company for receiving complaints about violations related to the prevention, investigation, and punishment of sexual harassment, workplace harassment, and violence at work. Employers must also inform about state entities where any violations of labor regulations can be reported and access social security benefits.

  1. Article 211-B of the Labor Code is replaced, establishing that investigation procedures must adhere to the principles of confidentiality, impartiality, promptness, and a gender perspective. A Regulation from the Ministry of Labor and Social Security, following a report from the Labor Directorate, will be issued to set the guidelines for the investigations.
  2. Article 211-Bis is added to the Labor Code, stating that, in the case of sexual harassment, workplace harassment, or violence at work, the affected person must submit a written or verbal complaint to the company or the respective Labor Inspection.

In the case of a verbal complaint, the recipient must create a record, which should be signed by the complainant, who must be provided with a copy.

Once the employer receives the complaint, immediate protective measures must be taken, considering the gravity of the alleged events, the safety of the complainant, and the possibilities arising from working conditions. Measures may include separating physical spaces, redistributing the workday, and providing early psychological support to the complainant through programs available from the respective administrative body under Law No. 16,744.

If the complaint is filed with the Labor Directorate, it will request the employer to adopt one or more protective measures within a maximum of 2 business days. These measures must be implemented immediately upon notification in accordance with Article 508.

  1. Article 211-C of the Labor Code is replaced, establishing that if the complaint is filed directly with the company, it may:
  • Conduct an internal investigation of the facts; or,
  • Refer the information to the respective Labor Inspection within 3 days.

In any case, the investigation must be concluded within thirty days.

If an internal investigation is chosen, it must be in writing, conducted in strict confidence, and ensure that both parties are heard and able to present their statements. Once completed, it will be submitted, along with the conclusions, to the respective Labor Inspection, which has 30 days to express its opinion. If the deadline is met and there is no response, the conclusions of the report will be considered valid, especially for taking measures regarding affected individuals.

  1. Article 211-E of the Labor Code is replaced, stating that, in accordance with the findings of the investigation in cases of sexual and workplace harassment, the employer must implement the corresponding measures and/or sanctions within 15 days of receiving the report. These measures or sanctions must be communicated to both the complainant and the accused within the same timeframe.

Additionally, the employer is obliged to provide information to the complainant about facts that may constitute potential crimes in the context of sexual harassment, workplace harassment, or violence at work.

The law also introduces modifications to Law No. 18,575 on General Bases of the State Administration; Law No. 18,834 on Administrative Statute; Law No. 18,883 approving the Administrative Statute for Municipal Officials; and Law No. 18,095, the constitutional organic law of Municipalities.

This law will enter into force on the first day of the sixth month following its publication in the Official Gazette. Processes or investigations on sexual harassment, workplace harassment, or violence at work initiated before the enforcement of this law will be governed by the rules in force on the date of filing the respective complaint.

For additional information on this matter, you can contact Alfred Sherman at asherman@jdf.cl and Isidora Fernández ifernandez@jdf.clasherman@jdf.cl) y/o Isidora Fernández ifernandez@jdf.cl

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