On July 18, 2017, Act 1846 came into force, amending Article 160 and literal d of Article 161 of the Substantive Labor Code, the former regarding the regulation of work during day and night shifts, and the latter concerning the surcharge for overtime work when a flexible daily working schedule has been agreed upon.
The regulation under study has stipulated that since its enactment, Night Work shall be any activity performed under an employment contract between NINE O'CLOCK AT NIGHT (9:00 PM) and SIX O'CLOCK IN THE MORNING (6:00 AM), thereby increasing by one (1) hour the period comprising night work. Accordingly, the surcharge for "night work" referred to in numeral 1 of Article 168 of the CST shall apply from NINE O'CLOCK AT NIGHT (9:00 PM) to any work undertaken by the employee within the ordinary working day.
Similarly, in cases where a flexible daily working schedule has been agreed upon as an exception to the maximum legal working hours, consisting of a weekly working schedule of forty-eight (48) hours distributed over six (6) days of the week, with variable schedules of a minimum of four (4) hours and a maximum of ten (10) hours, with one mandatory rest day, by express provision of Article 2 of the Act under study, no surcharge shall be incurred for overtime work provided that the forty-eight (48) weekly hours are not exceeded within the working day (Ordinary Work) from 6:00 AM to 9:00 PM.
It is prudent to note in this case that, contrary to what was suggested in various media outlets, no direct amendment was made to Article 159 of the CST[1] or to Article 22 of Law 50 of 1990[2], which are the provisions regulating overtime work – extra working hours. Therefore, with respect to the conventional or maximum legal working hours, overtime work shall be that which exceeds such hours, provided that it does not exceed two (2) extra hours per day, whether day or night, nor exceed twelve (12) extra hours per week. At this point, it is clarified that, although the rules governing the scope of overtime work were not amended, indirectly Act 1846 of July 18, 2017 affects the surcharges for night overtime hours, since from the normative logic it follows that overtime work must be calculated from NINE O'CLOCK AT NIGHT (9:00 PM) under the concept of "night overtime work," and from that hour the surcharge referred to in numeral 3 of Article 168 of the CST[3] shall apply.
[1] ARTICLE 159. OVERTIME WORK. Overtime or extra hours is that which exceeds the ordinary working day, and in any case that which exceeds the maximum legal working day.
[2] In no case may extra working hours, day or night, exceed two (2) hours per day and twelve (12) per week. When the working day is extended by agreements between employers and workers to ten (10) hours per day, no overtime may be worked on the same day.
[3] ARTICLE 168. RATES AND CALCULATION OF SURCHARGES. […] 3. Night overtime work shall be remunerated with a surcharge of seventy-five percent (75%) on the value of ordinary daytime work.