The Substantive Labor Code establishes in its Article 172 that employers are obligated to grant all their workers a paid mandatory rest day per week, which must have a minimum duration of 24 hours. In that sense, the days considered as mandatory rest are Sundays and holidays; however, if the parties so agree in the employment contract, Saturdays could also become rest days.
Thus, it must be understood that the worker's monthly salary includes the value of the mandatory paid rest day with the same value as any ordinary day, that is, in every salary, the payment of the legally mandatory rest is understood to be included. In turn, the worker, to be a beneficiary of the legally mandatory and paid rest day, must have provided their services on all working days of the week without having been absent from work, or if they were absent, it must have been for just cause or due to the employer's fault or disposition.
Now, since these are legally mandatory rest days, the general rule is that work should not be performed; however, it may happen that, due to the company's operations or market dynamics, workers have to do so habitually or occasionally. Thus, depending on this, the employer must compensate that day with a surcharge of 75% on the ordinary salary in proportion to the hours worked, or grant a paid compensatory rest day, or, failing that, recognize both benefits, as we will see below:
- Occasional Sunday work
According to paragraph 2 of Article 179 of the Substantive Labor Code, it is inferred that Sunday work, understood as mandatory rest, is occasional when the worker works up to two Sundays in the calendar month. Consequently, if the worker works 1 or 2 Sundays in the calendar month, they will have the right to one of the following two benefits at the worker's choice, namely:
- Monetary compensation, understood as the 75% surcharge on the ordinary salary in proportion to the hours worked,
Or;
- A paid compensatory rest day on another working day of the following week.
- Habitual Sunday work
According to paragraph 2 of Article 179 of the Substantive Labor Code, it is inferred that work on mandatory rest days is habitual when the worker works 3 or more Sundays during the calendar month. Consequently, the worker will have the right to have the following two benefits recognized:
- Monetary compensation, understood as the 75% surcharge on the ordinary salary in proportion to the hours worked.
And;
- A paid compensatory rest day on another working day of the following week.
Now, from the above, the question arises whether holidays are also counted to determine whether work on mandatory rest days is habitual or occasional, regarding which there are two different positions: on one hand, the position of the Ministry of Labor, and on the other hand, the position of the Supreme Court of Justice, namely:
- Ministry of Labor
The Ministry of Labor indicated in concept 11EE2016120000000014857 of 2016 that “habituality or occasionality, which generates the recognition of the compensatory day, is determined by work on the mandatory rest day, that is, SUNDAY. Consequently, although work on a holiday will be remunerated with a surcharge of seventy-five percent (75%) on the ordinary salary in proportion to the hours worked, just like work on Sundays, this does NOT mean that there would be a right to grant two compensatory rest days when working on both Sunday and a holiday in the same week.”
Similarly, it reiterated its position in concept 08SE2018120300000026764 of 2018 indicating that “work on Holidays that is performed by order of the Employer must be remunerated in the same manner as Sunday work, that is, with 1.75%, without there being compensatory rest on any occasion”, that is, according to the Ministry of Labor's concept, holidays are not counted to consider the habituality or occasionality of Sunday work and, therefore, it must always be remunerated with the surcharge established for it.
- Supreme Court of Justice (Judgment SL3567 of 2019)
In the aforementioned judgment, the Supreme Court of Justice indicated that, “if a worker occasionally works a Sunday or holiday of mandatory rest and chooses to enjoy the rest later, their right to compensatory rest is understood to be satisfied, without prejudice to the corresponding remuneration, since this is included in the ordinary salary. Likewise, if they choose not to enjoy the rest, that is, not to have a day of inactivity, but instead to receive the 75% surcharge for their work during the Sunday or holiday, which as already seen is additional to their ordinary salary, their right to compensatory rest is also understood to be granted.” That is, according to the Supreme Court of Justice's judgment, holidays are counted to consider the habituality or occasionality of work on mandatory rest days, contrary to what the Ministry of Labor indicates.
Now, in the face of this conflict of positions between different institutions and entities, it is suggested to apply Article 21 of the Substantive Labor Code, which establishes that, in case of conflict or doubt regarding the application of current labor norms, the most favorable to the worker prevails. In this case, the most favorable interpretation for the worker would be the position of the Supreme Court of Justice, and that is that holidays are indeed taken into account or counted to determine the occasionality or habituality of Sunday rest in order to establish whether a compensatory rest or a surcharge is given, or if, on the contrary, both concepts must be recognized.