LEY NÚM. 21.643

MODIFICATE THE CODEL OF WORK AND OTHER LEGAL HOURS, IN THE PREVENTION, INVESTIGATION AND SANTION OF THE LABORAL, SEXUAL OR VIOLENCE IN WORK

Bearing in mind that the H. National Congress has given its approval to the following bill that originated in motion of the deputies Erika Olivera De La Fuente, Daniella Cicardini Milla, Camila Musante Müller and Ximena Ossandón Irarrázabal and deputies Andrés Celis Montt, Luis Cuello Peña and Lillo and Mauricio Ojeda Rebolledo,

Bill:

"Article 1.- Modify Labour Code as follows:

1. In the Article 2:

(a) Replace the second subparagraph with the following:

"Work relations should always be based on a free treatment of violence, compatible with the dignity of the individual and with a gender perspective, which, for the purposes of this Code, implies the adoption of measures to promote equality and to eradicate discrimination based on that reason. They are contrary to the above, among other behaviors, the following:

(a) Sexual harassment, which is understood by a person who commits, unduly, by any means, sexual requirements, not consented to by the person receiving them and who threaten or harm their employment status or employment opportunities.

(b) Harassment of work, understood by such conduct as assault or harassment by the employer or by one or more workers, against another or other workers, by any means, whether it is manifested once or repeatedly, and that it results for the person or those concerned to be impaired, ill-treated or humiliated, or threatens or harms his or her employment situation or opportunities.

(c) Violence in work carried out by third parties other than the employment relationship, understood by such behaviours affecting workers and workers, on the occasion of the provision of services, by clients, suppliers or users, among others. ".

(b) Replace in the fourth paragraph the phrase "or social origin," for the following: ", social origin or any other motive."

2. In number 12 article 154:

(a) Replace paragraph 1 with the following:

"12. The protocol on the prevention of sexual harassment, labour and violence at work, and the procedure to which workers and workers shall be subjected, in accordance with Title IV of Book II, which shall consider the measures of protection to be taken with respect to those involved and the penalties to be applied."

(b) Incorporate in the second paragraph following the expression "sexual harassment," the following: "laboral or violence at work."

3. Add the next article 154 bis, new, passing the current to be 154 ter:

"Article 154 bis.- The employer who is not obliged to make the Internal Regulations referred to in this Chapter shall inform the workers and the workers of the protocol on the prevention of sexual harassment, labour and violence at work and the procedure of investigation and punishment to which such conduct shall be submitted, at the time of the signing of the employment contract, in accordance with Title IV of Book II, which shall consider the measures of protection involved. The above shall be in writing and shall be incorporated into the Regulations referred to in article 67 of the Act No. 16,744. For the purposes of the preparation of the investigation and punishment procedure, the employer may have the technical assistance of the law-enforcement agency concerned to which it is affiliated. ".

4. Replace the epigraph Part IV from Book II "De la investigación y sanction del hostigamiento sexual" by "DE LA PREVENTION, INVESTIGACIÓN y SANCION del ACOSO SEXUAL, LABORAL AND VIOLENCE IN WORK".

5. Add following Title IV of Book II, the following heading:

"Paragraph 1

Preventing sexual harassment, labor and violence at work."

6. Replace the article 211-A by the following:

"Article 211-A.- Workers and workers have the right to take and implement measures to prevent, investigate and punish sexual harassment, labour and violence in the workplace.

Employers should develop and make available to women workers and workers a protocol on the prevention of sexual harassment, labour and violence at work, through law enforcement agencies No. 16,744.

The protocol referred to in the preceding paragraph shall include at least the following:

(a) The identification of hazards and the assessment of psychosocial risks associated with sexual harassment, labour and violence at work, with a gender perspective.

(b) Measures to prevent and control such risks, with measurable objectives, to control the effectiveness of such measures and ensure their continuous improvement and correction.

(c) Measures to adequately inform and train workers and women workers about the risks identified and assessed, as well as the prevention and protection measures to be taken, including the rights and responsibilities of workers and workers and those of the company itself.

(d) Measures to prevent sexual harassment, labour and violence at work, in accordance with the nature of the services provided and the operation of the establishment or enterprise.

(e) Measures to safeguard the privacy and honour of all those involved in sexual or labour harassment investigation procedures, and measures to address inconsistent complaints in these matters. It should also contain prevention, training, education and protection mechanisms aimed at safeguarding the proper action of women workers, irrespective of the outcome of the investigation in these procedures.

However, employers and employers will have the duty to semesterly report the channels that the company maintains for the receipt of complaints about non-compliance with the prevention, investigation and punishment of sexual, labour and violence at work, as well as state agencies to denounce any breach of labour regulations and to access social security benefits.

The Superintendency of Social Security, by means of a general rule, shall give the guidelines to be provided by the administering entities of the Act No. 16,744 in the exercise of technical assistance to employers in all matters covered by this article. ".

7. Add to Title IV of Book II, following Article 211-A the following heading:

"Paragraph 2

From the investigation and punishment of sexual harassment, labor and violence at work."

8. Replace the article 211-B by the following:

"Article 211-B.- The investigation procedures regulated in this paragraph shall be subject to the principles of confidentiality, impartiality, speed and gender perspective.

A Regulation issued by the Ministry of Labour and Social Security, following a report by the Labour Directorate, shall establish the guidelines to which investigations should be adjusted. ".

9. Add following article 211-B the following article 211-B bis:

"Article 211-B bis.- In the event of sexual harassment, labour or violence at work, the person concerned must submit a written or oral complaint to the company, establishment or service, or to the respective Labour Inspectorate. If the complaint is made verbally, the person who receives it shall lift a record, which shall be signed by the complainant. A copy of it must be delivered to the complainant.

Upon receipt of the complaint, the employer must immediately take the necessary safeguard measures for those involved. To do so, it should consider the seriousness of the facts charged, the security of the complainant and the possibilities arising from the working conditions. Among others, the measures to be taken will consider the separation of physical spaces, the redistribution of the time of the day and the provision of early psychological care to the complainant through the programmes provided by the respective administering agency of the Act No. 16,744.

If the complaint is made before the Labour Inspectorate, it shall request the employer to take one or more measures to safeguard those referred to in the preceding paragraph, within a maximum of two working days, which shall be taken immediately, once notified in accordance with article 508. ".

10. Replace the article 211-Cfor the following:

"Article 211-C.- If the complaint is filed in the company, establishment or service, the employer shall have an internal investigation of the facts or, within three days, shall refer the background to the respective Labour Inspectorate.

In any case, the investigation shall be completed within thirty days.

If an internal investigation is chosen, it must be recorded in writing, carried in strict reservation and ensure that both parties are heard and can substantiate their statements. Once completed, it will be forwarded together with the conclusions to the respective Labour Inspectorate, which will have a period of thirty days to pronounce on it. In the event of the completion of the deadline and the absence of such a pronouncement, the conclusions of the report will be considered valid, especially for the purpose of taking action on the persons concerned.

In the case of the conduct set out in article 2, paragraph 2 (c), the conclusions shall contain the corrective measures to be taken by the employer in relation to the cause of the complaint.

The investigations referred to in this article shall always be consistent with the guidelines set out in the Regulations referred to in Article 211-B. Where these are carried out by the employer, a worker or worker who has training in matters of harassment, gender or fundamental rights shall preferably be appointed. ".

11. Get in the Article 211-D the next final paragraph, new:

"However, if the Inspectorate of Labour competent in the exercise of its powers becomes aware of a violation of fundamental rights, it must comply with the provisions of article 486, except as set out in paragraph 6 of the conduct set out in article 2 (a).

12. Replace the article 211-E by the following:

"Article 211-E.- In accordance with the merit of the investigation report in cases of sexual and labour harassment, the employer must provide and implement the appropriate measures or sanctions, within the following fifteen days of receipt.

The measures or sanctions taken shall be informed within the time limit referred to above, both to the complainant and the complainant.

The employer shall, where appropriate, apply the penalties in accordance with article 160, paragraph (b) or (f). However, in the case of letter 1 (f) it shall assess the seriousness of the facts investigated, which shall be reflected in the conclusions of the report.

A dismissed worker or dismissed worker may challenge such a decision before the competent court. To do so, the evidence necessary to devise the facts or backgrounds contained in the employer ' s report or the Labour Inspectorate that motivated the dismissal should be put to trial.

In addition, the employer shall be obliged to provide information to the complainant regarding channels of complaints of acts that may constitute offences in the context of sexual harassment, labour or violence at work. ".

Article 2.- Introduce the following amendments to Act No. 18,575, a constitutional body of State Administration, the consolidated, coordinated and systematized text of which was established by the Decree No. 1-19.653 of 2000 of the Ministry of General Secretariat of the Presidency:

1. Get in the article 13 the next final paragraph, new:

"Also public service will be exercised by proving respect for the right of every person, on the occasion of work, to enjoy a space free of violence, labor and sexual harassment. The organs of the State Administration shall take all necessary measures for their prevention, investigation and punishment. ".

2. Add the next article 14, new:

"Article 14. The organs of the State Administration should have a protocol on the prevention of violence at work, harassment at work and sexual levels to promote good treatment, healthy working environments and respect for the dignity of people, which will consider actions of dissemination, awareness-raising, training and monitoring. It may be assisted by law-enforcement agencies N°16.744, where appropriate.

The prevention protocol will incorporate at least the following:

(a) The identification of dangers and the assessment of psychosocial risks associated with sexual, labour and violence at work, with an inclusive and gender-sensitive approach.

(b) Measures to prevent and control the risks identified in previous verbatim, with measurable objectives, to assess their effectiveness and ensure their continued improvement and correction.

(c) Measures to adequately inform and train staff about identified and assessed risks, prevention and protection measures to be taken, and the rights and responsibilities of officials and women officials and those of the institution itself.

(d) The measures necessary in the light of the nature of the services provided to give timely implementation in the effective protection of the life and health of staff members in the area of sexual harassment, labour and violence at work.

(e) Measures to safeguard the privacy and honour of all those involved in sexual or labour harassment investigation procedures, and measures to address inconsistent complaints in these matters. It should also contain prevention, training, education and protection mechanisms aimed at safeguarding the appropriate action of women workers, irrespective of the outcome of the investigation in these procedures.

In the procedures for investigating sexual or labour harassment, the provisions of articles 90 A and 90 B of the Administrative Status Act No. 18,834, which was consolidated, coordinated and systematized by the decree of the Ministry of Finance by force of law No. 29 of 2004.

However, the chiefs of service shall have the duty to semesterly report the channels maintained by the agency and the State for the receipt of complaints concerning non-compliance with the prevention, investigation and punishment of sexual and labour harassment, and of any breach of the regulations governing persons in the public sector. In addition, it should report the mechanisms for accessing social security benefits. ".

3. Add to second paragraph article 46following the term "administrative summary" the phrase ", whose procedures must be subject to the principles of confidentiality, impartiality, speed and gender perspective".

4. In the article 62:

(a) In numeral 8, replace the word ", and" with a point and apart.

(b) Add next number 9, next number 10, new:

"10. Exercis sexual harassment, labour or violence at work, suffered by women officers and officials under article 2 of the Labour Code."

Article 3.- Insert the following amendments to Act No. 18,834 on Administrative Regulations, the consolidated, coordinated and systematized text of which was established by Decree No. 29 of 2004 of the Ministry of Finance :

1. Replace in the article 12 letter (e), the expression "functions, and" by the following text: "functions. However, as set out in article 121 of this Statute, it will not be necessary to comply with that time limit when determined by the respective prosecutor. ".

2. Get in the article 90 the following final subparagraph:

"However, when it is against the life or physical integrity of the officials and the officials, the authority must decide on the necessity of ex officio initiating the procedure of summary or administrative investigation to determine the administrative responsibilities if they correspond."

3. Add to second paragraph article 119following the term "administrative summary" the phrase ", whose procedures must be subject to the principles of confidentiality, impartiality, speed and gender perspective".

4. Get in the article 121 the next final paragraph, new:

"In the event that the disciplinary measure of dismissal is applied, as a result of the non-observance of article 84 letter (m), the prosecutor may determine, in the light of the above paragraph, that the staff member or staff member is exempt from meeting the time limit set out in article 12 (e), a decision that will not apply to the institution applying the measure. ".

5. Replace subparagraph 2 (b) article 125 by the following:

(b) To violate the provisions of article 84 (i), (j), (k), l) and (m);

6. Get in the article 126 the following second subparagraph:

"However, in the event of a complaint of facts that may violate the provisions of article 84 (l) or (m), the authority may only dismiss it by a well-founded decision and must notify the complainant within five days, who may exercise the right set forth in article 160."

7. Intercálanse en el article 129the following new, second, third and fourth subparagraphs, moving from the second subparagraph to the fifth subparagraph:

"In the event that the summary is ordered by facts that violate the provisions of article 84 (l) or (m)), a staff member or staff member shall preferably be appointed to have training in matters of prevention, investigation and punishment of harassment, gender or fundamental rights.

In the procedures instructed to determine administrative liability in such cases, victims and persons affected by any infractions shall have the right to provide background to the investigation, to know its content from the formulation of charges, to be notified and to appeal against administrative acts, in the same terms as the officer charged.

The above will also apply to the claims set out in articles 137 and 140."

8. Intercálase en el article 136the following second subparagraph, new, passing the current second and third subparagraphs to be third and fourth respectively:

"In the event that the case is taken by acts that violate the provisions of article 84 (l) or (m), the prosecutor shall take the necessary safeguard measures with respect to the persons involved. To this end, it should consider the seriousness of the facts imputed, the security of the complainant and the potential arising from the working conditions, including the separation of physical spaces and the granting to the complainant of early psychological care, through the programmes provided by the respective administering agency of the Act No. 16,744. The measures taken shall be in force for the duration of the disciplinary procedure and until it is refined. ".

9. Get in the article 137 the next final paragraph, new:

"When the prosecutor proposes the dismissal, and it is approved by the authority, the decision shall be notified that the procedure shall be defined to the person complaining of the facts referred to in article 84 (l) or (m), within the five-day period, who may claim it to the Comptroller General of the Republic within twenty days of the receipt of that, without prejudice to the provisions of article 131, paragraph 3. ".

10. In the article 140:

(a) Add, in paragraph 5, after the final point, which becomes a point and followed, the following final sentence: "However, when the authority determines the acquittal or applies any disciplinary measure in respect of the facts referred to in article 84 (l) or (m), it shall notify the resolution that defines the procedure to the person complaining within five days, who may claim it to the Comptroller General of the Republic, ".

(b) Add the following final subparagraph, new:

"The act overseeing, acquitting or applying the disciplinary measure against civil servants of the first hierarchical level of the institution or service, in respect of acts referred to in article 84 l) or m) shall be concerned with the procedure for taking reason by the Comptroller General of the Republic, which may not be carried out before the expiry of the claim period specified in paragraph 5 of this article. ".

11. Get in the article 143following the final point, which has become a point and followed, the following final sentence: "In cases concerning the non-compliance with the prohibitions enshrined in article 84 (l) or (m), such measures shall be taken within twenty days of the expiration of the time limits of instruction. ".

Article 4.- Modify Act No. 18.883approves Administrative Regulations for Municipal Officials, as follows:

1. Replace in the article 10 letter (e), the expression "functions, and" as follows: "functions. However, as set out in article 120, it will not be necessary to comply with that period when determined by the respective prosecutor. ".

2. Get in the article 88 the next final paragraph, new:

"However, when it is against the life or physical integrity of the officials and the officials, the authority must decide on the necessity of ex officio initiating the summary or summary investigation procedure to determine the administrative responsibilities if they correspond."

3. Add to second paragraph article 118following the term "administrative summary" the phrase ", whose procedures must be subject to the principles of confidentiality, impartiality, speed and gender perspective".

4. Get in the article 120 the next final paragraph, new:

"In the event that the disciplinary measure of dismissal is applied as a result of the non-observance of article 82 letter (m), the prosecutor may determine, in the light of the above paragraph, that the staff member or staff member is exempt from meeting the time limit set out in article 10 (e), a decision that is not applicable to the municipality applying the measure. ".

5. Replace verbatim (c) article 123 by the following:

"c) Infring the provisions of article 82 (l) and (m). ".

6. Intercálase en el article 124the next subparagraph, second, new, passing the current subparagraphs second, third, fourth, fifth, sixth, seventh and eighth to third, fourth, fifth, sixth, seventh, eighth and ninth respectively:

"However, in the event of a complaint of facts that might violate the provisions of article 84 (l) or (m), the authority may only dismiss it by a well-founded decision and must notify the complainant within five days, who may exercise the right set out in article 156. ".

7. Get in the article 126the following second and third subparagraphs:

"In the event that the person denounced, or the person complaining about the prohibitions set out in article 82 (l) and (m) is the mayor or the mayor, a councillor or councillor or officials or officials who act as heads of office who directly depend on the mayor or mayor, it must be brought to the attention of the Comptroller General of the Republic in accordance with three working days such a situation,

If the responsibility of the mayor or mayor is determined in the facts, it shall be indicated in the corresponding resolution. Councillors and councillors shall observe the provisions of article 60, letter (c) of Law No. 18,695, Constitutional Organization of Municipalities. ".

8. In the article 127:

(a) To consider the following new third, fourth and fifth subparagraphs, moving from the current second subparagraph to the sixth subparagraph:

"In the event that the summary is ordered by facts that violate the provisions of article 84 (l) or (m), a staff member or staff member who has training in matters of prevention, investigation and punishment of harassment, gender or fundamental rights shall be appointed as a preferential prosecutor.

In the procedures instructed to determine administrative liability in such cases, victims and persons affected by any infractions shall have the right to provide background to the investigation, to know its content from the formulation of charges, to be notified and to appeal against administrative acts, in the same terms as the accused official.

This will also apply to the claims set out in articles 135 and 138."

(b) In the third paragraph that has become sixth, replace the term "the" with the article "them".

9. Intercálanse en el article 133the following second subparagraph, new, passing the current second and third subparagraphs to be third and fourth respectively:

"In the case of facts relating to the prohibitions set out in article 82 (l) or (m), the public prosecutor shall take the necessary safeguard measures with respect to the persons involved, including the separation of physical spaces, the redistribution of the working day and the provision of early psychological care to the complainant, through the programmes provided by the respective administering agency of law No. 16,744. The measures taken will continue for the duration of the disciplinary procedure and until it is refined. ".

10. Intercálase en el article 135the following second subparagraph, new, moving the current second subparagraph to third:

"When the public prosecutor proposes the dismissal and is approved by the mayor or mayor, that resolution shall be notified to the person who complains of the facts referred to in article 82 (l) or (m), within five days, who may complain to the Office of the Comptroller General of the Republic within twenty days of his notice of this, without prejudice to the provisions of article 129, paragraph 3. ".

11. Add to the final paragraph article 138following the final point, which has become a point and followed, the following final sentence: "However, when the mayor or mayor approves the acquittal or applies any disciplinary measure in respect of the facts referred to in article 82 letters l) or m, he must notify the resolution that defines the disciplinary procedure to the complainant within five days. It may claim from the aforementioned resolution to the Office of the Comptroller General of the Republic, within twenty days of its notice, without prejudice to the provisions of article 129, paragraph 3.

12. Get in the article 141following the final point, which has become a point and followed, the following final sentence: "In cases concerning the non-compliance with the prohibitions enshrined in article 82 (l) or (m), such measures shall be taken within twenty days of the expiration of the time limits of instruction. ".

Article 5.- Modify Act No. 18,695, constitutional organ of municipalities, as follows:

1. Add to fourth paragraph article 60, following the phrase "on request of at least one third of the councillors in exercise," the phrase "or by a councilor or councilor when the mayor or the mayor has been the denounced or denounced and has been verified in the procedure of administrative summary instructed by the Comptroller General of the Republic, the concurrence of the prohibitions established in article 82.8 ly.

2. In the article 76:

(a) Replace in the verbatim (e) the expression ", and" by a point and apart.

(b) Incorporate the following subparagraph (g), new:

"(g) Determination of its responsibility in the administrative summary procedure instructed by the Comptroller General of the Republic, in respect of the concurrence of the prohibitions established in article 82 l) and (m) of Law No. 18.883. In these cases, it will be understood that there is serious contravention of the rules on administrative probity. ".

3. Replace the first subparagraph article 77 by the following:

"Article 77.- The cases established in subparagraphs (a), (c), (d), (e), (f) and (g) of the preceding article shall be declared by the respective regional electoral tribunal. The requirement may be made, as appropriate, by the mayor or the mayor or by any councillor or councillor of the respective municipality, in accordance with the procedure established in articles 17 et seq. of Act No. 18.593. The councillor who deems to be affected by any cause of inability must make it known only to his existence. The cessation of office, in the case of these cases, will operate once the sentence that declares its existence is enforced. ".

4. Add in paragraph 1 article 89following the expression "penal" the following final phrase ", and the provisions of article 82 l) and (m) of Law No. 18.883".

TRANSITIONAL ARTICLES

And for I have had it good to approve and punish it; therefore, promute and take it into effect as the Law of the Republic.

Santiago, January 5, 2024.- GABRIEL BORIC FONT, President of the Republic.- Jeannette Jara Román, Minister of Labour and Social Security.- Manuel Monsalve Benavides, Minister of the Interior and Public Security (S).- Mario Marcel Cullell, Minister of Finance.- Alvaro Elizalde Soto, Minister Secretary General of the Presidency.- Luis Cordero Vega, Minister of Justice and Human Rights.- Antonia Orellana Guarello, Minister of Women and Gender Equity.

What I write to you for your knowledge.- Giorgio Boccardo Bosoni, Undersecretary of Labour.