Everything you need to know about the working day reduction

From what date does implementation begin?

Act 2101 of 2021 indicated that the progressive reduction would begin "after two (2) years from the effective date of the law". Taking into account that the calendar year has 365 days, some interpret that the reduction begins to be effective as of July 15, 2023. However, taking into account the provisions of Articles 59 and 62 of Act 4 of 1913, which provide that the terms of months and years are computed according to the calendar, and Article 67 of the Civil Code, which provides that "the first and last day of a term of months or years must have the same number in the respective months", it has also been interpreted that the progressive reduction begins on July 16, 2023.

This last interpretation is the one accepted by the Ministry of Labor, which is why it is advisable to apply it. According to this interpretation, the progressive reduction of the maximum legal working day would be carried out as follows:

Notwithstanding the foregoing, employers may voluntarily implement in advance the 42 hour workweek, and thus have access to the early exemption of the family day and the day for recreational, cultural, sports or training activities.

Regarding the maximum daily working day, the regulation did not provide anything in this respect, it only indicated that the 42 hour working week may be distributed, by mutual agreement, in 5 or 6 days a week, always guaranteeing the rest day, therefore the maximum daily working day will depend on the way in which the weekly working day is distributed, respecting in any case the payment of supplementary work or overtime when applicable.

How should the reduction of the maximum legal working day be applied?

Act 2101 of 2021 does not say anything about it, but understanding that the only thing that is modified is the maximum legal working day and not the way of distributing it, companies may choose the following options:

• Modify the entry and/or exit times of shifts or work schedules.

• Extend the rest periods granted for meals, considering that these periods do not count as part of the working day.

At this point, it is necessary to specify that the working day is different from the work schedule. The first one refers to the time, in relation to a defined range (day, week, month, etc.), agreed with the worker to provide the service, while the latter one, which is the work schedule, refers to the time in which the worker complies with his working day, that is the time of entry and/or exit of the employee.

Thus, employers are autonomous in deciding how to make the reduction, since the modification of work schedules does not imply necessarily a modification of the employment contract. However, each individual case must be evaluated to determine whether it is necessary to modify the employment contract or the Internal Labor Regulations.

It should also be noted that it is not feasible to accumulate the hours resulting from the reduction of the workday since, as indicated, the forms of distributing the workday (successive work shifts, work shifts for non-continuous activities, flexible work shifts, etc.) were not modified, nor were those related to supplementary work. Consequently, any work that exceeds the ordinary working day or the maximum legal working day will constitute supplementary or overtime work in accordance with Article 159 of the Substantive Labor Code.

Will the reduction in working hours affect workers' wages and overtime?

Article 4 of Act 2101 of 2021 expressly states that the reduction of the working day will not imply a reduction of the salary or benefit remuneration, nor of the value of the ordinary working hour. However, this has given rise to numerous discussions about the implications this has on the calculation of the ordinary working hour, because although the salary is not reduced, the working hours in the month are reduced.

We remind you that the surcharges for supplementary or overtime work, night work, Sundays and holidays are as follows:

It should also be noted that the formulation currently used by employers to calculate the value of the ordinary hour is as follows:

Monthly salary

240

Where 240 corresponds to the total working hours in the month (30x8), remembering that the working month has 30 days, and the maximum daily working day is 8 hours.

With the reduction of the workday, the denominator (240) would become 235 (7.83x30), where 7.83 would be the average daily hours worked in a 6-day workweek.

In this way, the value of the ordinary hour and the overtime, night shift, Sunday and holiday surcharges will be affected as follows:

*Values calculated according to the Minimum Legal Monthly Wage in Force (SMLMV), which corresponds to COP $1,160,000.

It is important to note that the Ministry of Labor has a different interpretation regarding the calculation of the ordinary hour. In its concept 08SE2023120300000018241 of June 26, 2023, they stated that it is calculated as follows:

"The 47 maximum weekly hours would be taken and multiplied by the (4.33) which is equivalent to the average number of weeks whatever the month of the year, obtained as a result the total or total number of hours worked per month, in this case (203.51), hours per month. Subsequently, the value of the monthly salary earned by the worker must be taken and divided by the number of hours per month (203.51), thus obtaining the value of an hour, based on which the calculation of the applicable surcharges is made".

However, they then stated that the following should be applied to calculate the value of the work on one (1) Sunday or holiday:

"will take the value of the employee's salary and divide it into the 30 days of the month, to this value will be surcharged the percentage mandated by law of 1.75%."

As can be seen, both ways of calculating the surcharges contradict each other, therefore, considering that the concepts of the Ministry of Labor are not mandatory, it is advisable to continue applying the formula of monthly salary divided by the total working hours of the month (235 or the one applicable according to the progressive reduction) until a judicial authority states otherwise.

What will happen to the family day and the day for recreational activities?

Let us recall that Article 21 of Act 50 of 1990 establishes that "in companies with more than fifty (50) workers who work forty-eight (48) hours a week, they shall have the right to have two (2) hours of said workday, at the employer's expense, dedicated exclusively to recreational, cultural, sports or training activities".

On the other hand, regarding the family day, Article 5A of Law 1857 of 2017 states in its paragraph as follows:

"Employers must facilitate, promote and manage a six-monthly day in which their employees can share with their family in a space provided by the employer or in one managed before the family compensation fund with which the employees have. If the employer fails to manage this day, it must allow workers to have this space of time with their families without affecting rest days, this without prejudice to agreeing on complementary working hours."

Having clarified the above, regarding the family day, it should be indicated that it must continue to be granted until the working day becomes 42 hours per week, that is, until July 15, 2026, since only until at this moment the exoneration brought by Act 2101 of 2021 will be applied. As for the working days for recreational, cultural, sports or training activities, this must be adjusted proportionally by mutual agreement between the employee and the employer until July 15, 2026, date on which the obligation to grant it will cease.

The above are just some of the most common questions regarding the reduction of the maximum legal working day, but there are undoubtedly many other questions that will continue to arise with its progressive application. In Mazars we have a whole work team ready to support you with any requirement in labor matters, so if you have any questions about the above, please do not hesitate to contact us.