There is still some inconsistency regarding the different treatment of individual and collective agreements.
More than a year after the entry into force of Law No. 21,561, known as the “40-hour work week law,” one of the many questions relates to how the working day should be reduced—in April 2026 to 42 hours per week—for workers who, by individual agreement (tacit or express), had agreed that meal breaks should be counted as part of the working day.
In this regard, the general rule is that this break time is not part of the working day. In principle, it could be understood that employees in this situation would already have an “effective” working day that is less than the maximum weekly working day.
In fact, the “40-hour law” only addresses meal breaks in its sixth transitional article, in cases where this is agreed as part of the working day through collective agreements.
This article establishes that this inclusion is not automatically incorporated into individual contracts nor does it constitute a bargaining floor, so if there is no new agreement between the parties, meal breaks will no longer be included in the working day.
Thus, the main question arose in cases where the allocation of the meal break to the working day was not regulated in a collective agreement, but was agreed individually between the employee and the employer, either expressly or tacitly.
In this case, after more than a year in force, the DT issued Ruling No. 745/38, dated November 11, 2025, which, among other issues, states that “if the parties, considered individually, have agreed in the employment contract to include meal breaks in the working day through a clause in an individual contract (express or tacit), this can only be modified by agreement between the parties, in accordance with the provisions of paragraph 3 of Article 5 of the Labor Code.”
In other words, for example, if a company currently maintains a maximum working week of 44 hours and has agreed that one hour of meal time is attributable to the working day, in practice, even though its workers work fewer than the legal number of hours, it must still reduce the working week to 42 hours in April, unless there is an agreement between the parties regarding the attribution of meal time.
Finally, it is important to mention that the Labor Directorate’s criteria are not without controversy, given that judicial jurisprudence has not been uniform in this matter and there is still some inconsistency regarding the different treatment of individual and collective agreements.
Así, la principal duda surgía en torno a los casos en que la imputación de la colación a la jornada no estaba regulada en un instrumento colectivo, sino pactada individualmente entre el trabajador y el empleador, de manera expresa o tácita.
For more information on these issues, please contact our Labor Group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Director Labor Group | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Manuel Sepúlveda | Associate | msepulveda@az.cl
Catalina Díaz | Associate | cdiazp@az.cl
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