The Labour Department recently issued a ruling declaring that it is legally appropriate to include reference to a code of ethics in employment contracts and employers' internal regulations on order, hygiene and safety, provided that such a code does not violate the fundamental rights of employees or other labour rights recognised by applicable laws.(1)
The department stated that the employment contract should be self-sufficient (ie, both parties should be able to identify clearly the obligations and rights that they can derive from such an instrument). Thus, the code of ethics should be incorporated into the employment contract as a schedule and provided to each employee when the respective contract is signed – or as an amendment that makes the document part of the individual labour contract – to provide legal certainty to the employee regarding his or her rights and obligations.
Any prohibition or obligation imposed by the employer is limited by the employee's rights, which cannot be legally relinquished, as provided for in Article 5(2) of the Labour Code, which states that "rights under labour laws are not waivable while a contract of employment is in place".
This rule has the clear intention of protecting the rights of employees and any agreement that tries to limit legally acceptable standards will violate labour laws and thus be null and void. Therefore, when incorporating the code of ethics into employment contracts and internal regulations on order, hygiene and safety, it must respect the mandatory and fundamental rights of employees as established under labour law. This implies that:
- any obligation or prohibition imposed by the employer regarding matters of order, health and safety must be contained in its internal regulations;
- any obligation or prohibition contained in the code of ethics applies only while the employee is at his or her workplace;
- control measures should be implemented by appropriate means that are consistent with the nature of the employment relationship and their application should respect the dignity of employees and be non-discriminatory; and
- the employer must keep employee information and private data to which it has access during the employment relationship confidential.
For further information on this topic please contact Maria Luz Ríos at Montt y Cia SA by telephone (+56 22 233 8266) or email (email@example.com). The Montt y Cia SA website can be accessed at www.monttcia.cl.
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