The positions of educational assistant of a Local Public Education Service and teacher are incompatible. – Constitutional Journal

The Regional Comptroller’s Office of Arica and Parinacota forwarded the presentation of the Local Public Education Service of Chinchorro, in which it requests a statement regarding the eventual incompatibility that would affect education assistants to be hired as replacement teachers.

In this regard, the Comptroller refers to article 20, letter c), of Law No. 21,109, Statute of Public Education Assistants, which states
that the performance of the positions referred to in that legal body will be compatible with the exercise of certain functions or jobs, among them and in what matters, with those whose appointment is for legally determined periods, as occurs, in general, with the positions of replacement.

Now, despite the fact that the aforementioned norm allows compatibility in the conditions it states, the Comptroller specifies that in the case of positions subject to different statutes, such compatibility must necessarily be contemplated in each of the regulations.
regulators of the respective performances, as stated in the repeated and uniform administrative jurisprudence (opinions Nos. 30,802, of 1996; 32,871, of 2012; 14,925, of 2013 and 11,481, of 2014).

Therefore, to determine whether the aforementioned jobs are compatible with each other, it is necessary to consider the rules that regulate the performance of a teaching position.

In this context, it indicates that those jobs are regulated in Law No. 19,070, on the Statute of Education Professionals, an ordinance that does not contemplate any rule that establishes the compatibility in question. In turn, the Labor Code – applicable additionally to teachers who work in the Local Public Education Services, by express provision of article 71 of that statute – does not contain precepts that address such matter.

Consequently, given that, in this species, the described assumptions are not met, the Comptroller concludes that the positions of educational assistant of a Local Public Education Service and teacher are incompatible.

Without prejudice to the above, he adds that it is important to take into account that article 38, third paragraph, of law No. 21,109 itself provides that, exceptionally, in the event of the temporary absence of a teacher, professional education assistants, preferably psychopedagogues, may be intended to cover a certain class, with the purpose of maintaining the correct functioning of educational establishments.

In this regard, the Comptroller states that the objective of the indication that gave rise to said exceptional requirement was not to “regulate the
permanent replacement of a teacher”, but rather “address the practical problem of replacing a teacher at a given time” (history of the law No. 21,109, pages 278 and 279).

In this way, and considering that the provision allows educational assistants to be assigned to cover a certain class, it concludes that such possibility is limited, ultimately, to a specific case limited in time.

See opinion of the Comptroller’s Office.