Understanding Employment Contracts for Teachers in Chile

Posted on Dec 8, 2024 in Law & Jurisprudence

The Employment Contract

What is an Individual Employment Contract?

The individual employment contract is an agreement whereby the employer and employee have mutual obligations. The latter provides personal service under the dependence and subordination of the former, and the employer pays a certain remuneration for these services.

The Labor Code defines the contract we sign as we join our respective labor pool. The employment contract must be signed by both parties no later than fifteen days after the worker is hired. Often, a month or two may pass before the contract is signed, which should be reported to the Labor Inspectorate.

A worker may refuse to sign a contract on the grounds that it does not comply with the conditions originally given by the employer. In this situation, the employer may resort to the Labor Inspectorate to request the signature. If the worker refuses, they could be fired unless they can prove they were hired under conditions other than those stated in the written document. Obviously, it is very difficult to prove such a situation, so the employee runs some risk.

However, if the contract is signed after the legal deadline of fifteen days, the legal provisions of the contract may be considered as those stated by the worker.

What Should an Employment Contract Include?

  • Place and date of the contract.
  • Identification of the parties, indicating nationality and dates of birth and the worker’s start date.
  • Determination of the nature of the services and the place or city where they will be rendered.
  • Amount, form, and period of payment of the agreed remuneration.
  • Duration and distribution of the working day.
  • Contract term.
  • Other agreements made by the parties.

What Does the Statute Say About Teachers in the Subsidized Private Sector?

Title IV, Paragraph I, Article 78 states that our labor relations are governed by private law and the rules of the Labor Code. This means that workers in subsidized private schools must achieve a lot through collective bargaining. For example:

  • Administrative days
  • Payment of the first three days of medical leave
  • Biennial payment (payment every two years)

Many workers do not have these rights as they depend on a collective bargaining system made to favor employers. The municipal sector alone may provide all workers with the payment of the first three days of medical leave, but those in the private sector may be in distress or have reduced benefits depending on the goodwill of the employer.

Do Educational Statutes Not Apply to Government-Subsidized Staff?

They do apply with regard to the employment contract, but some areas should be resolved as stipulated in the Labor Code, i.e., through collective bargaining. Also, part of our revenues originates from resources generated from that statute.

What Types of Contracts Can We Find?

For teachers, there are three types of contracts:

  • Fixed-term: Usually extends for one year. It stipulates the date of entry into service and the date the working relationship with the employer will end. The most common dates are from March 1 until February 28 of the following year. This type of contract is not eligible for compensation at the end of the term.

  • Replacement: These are cases where a teacher is hired to cover the absence of another. It lasts as long as the absence of the teacher being replaced. The contract should stipulate who is being replaced and the cause of their absence.

  • Indefinite: When the teacher is hired without a completion date, allowing the accumulation of years of service.

Fixed-Term Contracts

This is certainly an aberration against education because teachers are hired for one year and, in many cases, are not reinstated due to the permanent contract status. How many of us are hired on March 1 and know that the contract concludes on February 28? Once they see how your performance is, you may move to a permanent contract!, say the owners or directors responsible for putting up the face. To this, we add the complacent attitude of the Concertación governments, which still have a majority in the Senate and do not pass laws to change this situation.

How can we talk about job security in subsidized private schools if the owner maintains a significant number of teachers with a fixed-term system? This results in lower quality education and insecurity for teachers at the end of each year. Also, if you start a union or raise the idea of forming one, the staff may be immediately let go. Union-busting is a common practice, but very difficult to prove. In December, teachers may be told there are no available hours, student enrollment is dropping, they do not adjust to the working mode of the establishment, or they are not appropriate for the school’s educational project (many of these schools do not have an educational project), and so on.

In short, although the fixed-term contract may be necessary for certain items, it is not appropriate for schools. If the employer believes they need a way to get rid of unsuitable teachers, they can use Article 160 of the Labor Code, which allows for the termination of the employment contract.

What Happens to Our Contracts During January and February?

In most cases, the contract is for at least a year, so teachers should be paid in January and February. The Labor Code is very specific in this regard. Article 75 states that “whatever the system of recruitment of teachers in both primary and secondary education or its equivalent, employment contracts outstanding at December shall be extended for January and February, provided that the teacher has more than six months of continuous service in the same establishment.”

This situation is confirmed by the Teacher Statute in Article 82, which states: “Every contract in force as of December shall be extended for January and February or the period between that month and the beginning of the next school year, provided that the education professional has more than six months of continuous service with the same employer.”

Important: If an education worker is fired in December, they may complain to the respective Labor Inspection, as there should be no settlement until the beginning of the next school year. Employers often avoid having a teacher during December to avoid paying them.

Causes of Termination of Contract

  • Mutual agreement between the parties.
  • Resignation of the employee, giving notice to the employer thirty days in advance.
  • Worker’s death.
  • Deadline agreed upon in the contract. The duration of a fixed-term contract may not exceed one year.
  • Completion of the work or service that gave rise to the contract.
  • Fortuitous event or force majeure.

Do We Have the Right to Compensation if We Are Fired?

There is not always a right to compensation, which is why we must be careful and know what the law requires. Labor Code Article 160 states the following: The employment contract ends without the right to compensation when the employer terminates it by invoking one or more of the following reasons:

  • Dishonesty, assault, serious injuries, or further substantiated immoral conduct.
  • Negotiations carried out by the worker within the scope of the business, which have been prohibited in writing in the contract by the employer.
  • Non-attendance of the worker without just cause for two days, two Mondays in a month, or a total of three days during the same period.
  • Walkout by the worker, understood as:
    • Untimely or unjustified departure of the employee from the work site during working hours without permission from the employer or their representative.
    • Refusal to work without just cause.
  • Acts, omissions, or rash actions that affect the safety or operation of the facility, the security or activities of employees, or their health.
  • Intentionally caused material injury to the premises, machinery, tools, work tools, products, or merchandise.
  • Serious breach of obligations under the contract.

Article 161 of the Labor Code

This article states that the employer may terminate the employment contract on grounds of the needs of the enterprise, establishment, or service, such as those resulting from rationalization and modernization, low productivity, changes in market conditions or the economy, which would require the separation of one or more workers, and the inadequacy of the worker’s labor or technical skills.

If the employer invokes this ground for termination, they must notify the employee in writing, with copies to the respective Labor Inspection, at least thirty days in advance. The employer has the option not to use this notice if they pay the worker compensation in lieu of such notice, equivalent to the last monthly wage.

Indemnity

If the contract had been in place for over a year and the employer terminates it pursuant to Article 161, they shall pay the worker compensation for years of service.

  • 5 years of work = 5 months’ pay
  • 5 years and 7 months of work = 6 months’ pay

The maximum compensation is 330 days of pay. This means:

  • 15 years of work = 11 months’ pay

For the payment of compensation, the last payment received by the worker is considered in the calculation.

What Does the Teacher Statute Say About Termination of Contract and Compensation?

Title IV, Article 87 states:

“If the employer puts an end to the employment contract of a teacher for any of the grounds mentioned in Article 161 of the Labor Code, they shall pay, in addition to compensation for years of service, an additional amount equal to the remuneration they would have been entitled to receive if the contract had lasted until the end of the current business year.”

So, if a teacher with five years of service is dismissed in October, they are entitled to the following compensation:

  • 5 months’ compensation for years of service.
  • Payment of their wages between October and February.

But the Teacher Statute also states:

“The employer may terminate the contract without having to pay for the months of pay, provided that the termination of services is effective the day before the first month in which classes begin the next school year, and the eviction notice was given at least sixty days in advance. Otherwise, the eviction may not take effect, and the agreement shall continue in force.”

Important: If a teacher receives a notice of dismissal on February 1, it is not valid because it is outside the time limit prescribed by law.

“Professor, we were unable to locate you before, so we signed the notice of termination of contract!”, school owners sometimes say. Then they give us papers to sign with dates that do not match. Important: If you sign on January 10, do not accept documents dated December 30.

What Should I Do if I Am Fired Mid-Year?

If the reason for dismissal is deemed unjustified by the worker, it should be stipulated in the Labor Inspectorate. This procedure must be performed by the worker as soon as possible. Eventually, the employer may appeal a dismissal that does not involve compensation. In this case, the worker must include the requirement to pay all that applies in the respective Labor Inspection.

What Happens if I Am Fired at the End of the Year?

  • If the contract is fixed-term, there is nothing more to do.
  • If the contract is indefinite, the employer must give written notice to the employee sixty days before the start of the year.
  • They must submit certification of payment of pension contributions to date.
  • The worker must ensure that their settlement provides for payment of compensation and all monies allocated to them for having worked for two months of the year, such as participation in the company’s profits.
  • Immediately inform union leaders to seek necessary advice.