Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

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

The Committee notes the first report sent by the Government and the comments submitted by the Single Central Organization of Chilean Workers (CUT) and other trade union organizations on application of the Convention in communication No. 1 of February 2001. The Committee requests the Government to supply its comments on the matter.

1. The Committee observes that under the provisions of section 304 of the Labour Code, collective bargaining does not exist in the state enterprises dependent on the Ministry of National Defence or those connected with the Supreme Government through that Ministry or in those in which special laws prohibit that possibility, nor that there can be collective bargaining in public or private enterprises or institutions whose budgets have been financed in any of the last two calendar years to the extent of 50 per cent by the State, directly, or by means of duties or taxes. In this respect, the Committee recalls that under the provisions of the Convention the right to bargain collectively may be prohibited only in regard to the armed forces, the police or public servants engaged in the administration of the State, particularly the officials in ministries and other comparable governmental bodies. In this regard, the Committee requests the Government to take measures to bring section 304 of the Labour Code into conformity with the Convention.

The Committee observes that section 1 of the Labour Code provides that the Code does not apply to officials of the National Congress or the judiciary, nor to workers in state enterprises or institutions, or those in which the State has an interest, participation or representation, since these officials and workers have a special status in law. The Committee requests the Government to indicate in its next report whether these categories of workers enjoy the guarantees laid down in the Convention and, if so, to indicate the legal basis.

2. The Committee observes that under the provisions of section 314bis and section 315 of the Labour Code, groups of workers are authorized to submit draft collective agreements. In this matter, the Committee recalls that Article 4 of the Convention refers to the need to adopt appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment and that, besides, the Collective Agreements Recommendation, 1951, (No. 91), gives priority, as one of the parties to collective bargaining, to representative workers’ organizations, referring to the representatives of the workers concerned only in the absence of such organizations. In this regard, the Committee requests the Government to inform it whether in practice the groups of workers mentioned in the sections concerned carry out collective bargaining even where there exist workers’ organizations in the relevant sectors.

With reference to the foregoing paragraph, the Committee also observes that the Committee on Freedom of Association requested the Government to take measures to modify legislation to clearly prevent the practice of "multiple individual contracts" (or contracts of adhesion) when there is a representative trade union and to see to it that direct negotiation with workers does not create difficulties for, or weaken the position of, trade unions (see 325th report of the Committee on Freedom of Association, paragraphs 216-237). The Committee shares this point of view.

3. Finally, the Committee notes that under the provisions of section 320 of the Labour Code the employer has an obligation to communicate to all workers in the enterprise the submission of a draft collective agreement so that they can present drafts or subscribe to the one submitted. In this regard, the Committee considers that a provision of this type does not encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations. The Committee requests the Government to take measures to repeal this provision.