Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Chile (Ratification: 1999)

Article 4 of the Convention. Promotion of collective bargaining Level of collective bargaining. Inter-enterprise unions. In its previous comment, the Committee noted that the labour reform maintains collective bargaining that is binding (“regulated”) at the enterprise level and that at higher levels collective bargaining remains voluntary, and confederations and federations can submit draft collective agreements and initiate negotiations regulated by the Labour Code. The Committee also noted the observations of various workers’ organizations alleging that the industrial relations system does not adequately promote collective bargaining at the different levels, as it gives priority to bargaining at the enterprise level to the detriment of collective bargaining at higher levels, which does not enjoy the same recognized guarantees (the Committee notes that the most recent observations by the CGTP, CTC, WFTU and CUT once again allege that priority is given to enterprise-level bargaining). The Committee notes that the Government, in reply to the Committee, reiterates that confederations and federations can submit draft collective agreements, without being subject to the rules of the regulated collective bargaining process and with the prior agreement of one or more employers or one or more employers’ associations, and emphasizes that this confirms the recognition granted by the legislator in law to voluntary forms of bargaining. The Government also provides statistical data on the negotiations undertaken between 2017 and June 2019 showing that, during this period: (i) a total of 7,372 collective instruments were concluded in the country, covering a total of 975,209 workers; and (ii) of these, inter-enterprise unions concluded 989 collective instruments, covering a total of 173,961 workers.

The Committee also noted in its previous comment the observations of the CGTP indicating that, in accordance with the special collective bargaining system for inter-enterprise unions set out in section 364 of the Labour Code, employers retain the right to refuse to negotiate with inter-enterprise unions in small enterprises (of up to 50 workers which, according to the CGTP, account for over 80 per cent of the enterprises in the country) and that, where an employer so refuses, the Labour Code does not authorize the inter-enterprise union to represent its members. The Committee requested the Government to provide its comments on the CGTP’s observations and to report on the application in practice of the new provisions concerning collective bargaining at the enterprise level by inter-enterprise unions. The Committee notes that the Government refers in response to four legal statements issued by the Directorate for Labour in relation to these provisions (these statements emphasize, for example, that an inter-enterprise union may engage in bargaining through unregulated procedures (with the agreement of the employer) or, in the case of enterprises with over 50 workers, in accordance with the regulated procedure; they add that, if the employer does not notify acceptance or refusal to engage in bargaining with the inter-enterprise union within the time limits, it is understood to have agreed to bargain). The Committee notes that the Government has not replied directly to the observations of the CGTP (which once again raises the matter in its most recent observations, as do the CTC and FESINTRACH), and that it has not provided information on the impact of the application of section 364 of the Labour Code.

In light of the above, the Committee once again invites the Government to engage in social dialogue with a view to agreeing on solutions to encourage the full development and utilization of collective bargaining procedures at the various levels. The Committee requests the Government to continue providing information on the impact of the labour reform on the exercise of collective bargaining, with comparative data on the number of collective agreements adopted by level and sector, particularly comparing the enterprise level and higher levels, and the number of workers covered. The Committee also requests the Government to provide information on the impact of the application in practice of section 364 of the Labour Code on the choice of the level of organization representing workers in collective bargaining.

Apprentices and occasional and temporary workers and workers engaged for a temporary task or activity. The Committee notes the information provided by the Government on the rules governing collective bargaining for apprentices and occasional and temporary workers and workers engaged on a temporary task or activity, and on the exercise of this right. The statistics provided by the Government show that, between 2017 and June 2019, there were seven bargaining processes covering occasional and temporary workers and workers engaged on a temporary task or activity, and that no union concluded a collective instrument as a result of these processes. Taking due note of this information, the Committee requests the Government to provide information on the measures adopted or envisaged to promote collective bargaining by apprentices and occasional and temporary workers and workers engaged on a temporary task or activity.

Education sector. The Committee also notes that the Committee on Freedom of Association observed that the trade union rights of education assistants are determined in accordance with the system in force for civil servants and it drew attention to the importance of promoting collective bargaining in the education sector within the meaning of Article 4 of the Convention and referred the legislative aspects of the matter to the Committee of Experts (388th Report, March 2019, Cases Nos 3246 and 3247, paragraph 285). The Committee requests the Government to provide information on the promotion of collective bargaining in the education sector, with particular reference to education assistants and their right to engage in collective bargaining in law and practice.