Until the end of December of last year there was still the doubt in many enterprises as to if the holidays should be counted to determine if the Sunday work was occasional or usual.
The reason for the doubt arose because the Labor law put on the same level the manner of remunerating the work in Sundays and in holidays.
Fortunately this concern was resolved by the Ministry of Labor through Opinion No. 197876 of the month of December of 2012.
¿What is the Sunday rest?
Labor law establishes that the employer is obliged to give remunerated Sunday rest to all the employees and that the same shall have a minimum duration of twenty-four (24) hours.
Similarly, it is established that the employee may agree with the employer if the day of mandatory rest is the Saturday or Sunday and the agreed day shall be acknowledged in all aspects as the mandatory Sunday rest.
¿When a work on Sunday may be deemed as occasional and when as usual?
Regarding the regularity of the work on Sundays, Article 179 of the Labor Substantive Labor Code (hereinafter referred as CST because of its initials in Spanish) establishes that Sunday work is occasional when the employee works up to two (2) Sundays during the calendar month and that it shall be usual when the employee works three (3) or more Sundays during the calendar month.
The mentioned opinion clarified that the holidays worked during the month may not be counted to determine if the work is usual or occasional. Due to such reason if within one month an employee works two (2) Sundays and one (1) holiday, the Sunday work shall continue being occasional and not usual as it was believed before.
¿How should I remunerate the occasional Sunday work?
The law establishes that the employee occasionally working on the mandatory rest day q shall be entitled to a remunerated compensatory rest or compensation in money, at his election.
¿ How should I remunerate the usual Sunday work?
Law establishes that those employees usually working in the mandatory rest day are entitled to a compensatory remunerated rest plus a compensation in money.
¿Which is the surcharge that I shall acknowledge for the Sunday work?
Article 179 of the CST establishes that the surcharge that must be acknowledged for working on Sundays is 75% over the ordinary salary proportional to the worked hours.
This item was also polemic since it was common that some employers understood that if an employee worked on Sunday he should be paid with a day of salary plus the surcharge of 75%.
However the Ministry of Labor also clarified this item in its opinion of December and provided that the remuneration for the Sunday rest is included within the payment of the ordinary salary, due to which if an employee works on Sunday, the employer must only pay to such employee working on Sunday the Sunday surcharge of 75%.
¿When shall I grant the compensatory rest day?
Article 183 of the CST establishes that the compensatory rest day shall be granted by the employer and enjoyed by the employee in another working day of the week following the day worked.
¿How should I remunerate the work on Holidays?
Sundays and Holidays are equal for the purposes of surcharge payments due to working in such days.
Taking into account the above, the employee working in a holiday hall have a consideration in money, which will correspond to a surcharge of 75% over the ordinary day.
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