Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes the Government’s observations concerning the comments made by the National Confederation of Municipal Public Employees of Chile (ASEMUCH) of 17 January and 25 May 2005.

The Committee notes that the above comments concern a draft law denying organizations of municipal public employees the right to collective bargaining. The Committee notes that the Government states that in accordance with section 110 of the Constitution “municipalities, … may create or abolish posts and set pay, as well as establishing the bodies or units provided for by the Organic Constitutional Law and these functions shall be exercised within the limits and requirements set by the Organic Constitutional Law on Municipalities”. The Committee notes that according to the Government, one of the central aspects of the above proposal consists of promoting processes of dialogue and collective participation of public employees with regard to employment and working conditions and remuneration through mechanisms of participation and regulated consultation, such as those provided for in statutes governing other sectors. The Committee notes that, as part of its relations with the Congress, the Senate’s Committee on Governance, Regionalization and Decentralization requested the Government to initiate a phase of negotiation between the workers of ASEMUCH and the Chilean Association of Municipalities (ACHMS) in order to strengthen the project to reduce disputes between the parties and that, according to the Government, the proposed regulation contained in section 110 makes adequate provision for mechanisms for bargaining, participation and regulated consultation. The Committee recalls that, under the terms of Article 6 of the Convention, only public employees engaged in the administration of the State shall be excluded from its scope of application (in particular those working in ministries and other comparable governmental bodies, as well as ancillary staff) (see General Survey on freedom of association and collective bargaining, 1994, paragraph 262). Taking into account the fact that the draft law is still at the consultation stage, the Committee requests the Government to take the measures necessary to ensure that full consultations are carried out with the social partners with a view to finding shared solutions compatible with the Convention.

The Committee notes that the Government has not sent its observations regarding the comments made over the past few years with regard to the following questions:

n      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 can there 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. The Committee once again recalls that this provision is not in conformity with the Convention and asks the Government to take the measures necessary to ensure that the workers in the above sectors, who are not members of the armed forces, the police or public servants engaged in the administration of the State, benefit from the right to collective bargaining;

n      section 1 of the Labour Code provides that it 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, provided that such officials and workers have a special status in law. The Committee once again recalls that workers in the National Congress and the judiciary, in the same way as those in state enterprises and institutions or those in which the State has an interest, participation or representation, should benefit from the right of collective bargaining. In this regard, the Committee requests the Government to take measures to ensure that the officials in question who are not officials in the state administration benefit from this right and to inform it in its next report of any action taken in this respect;

n      under the terms of sections 314bis and 315 of the Labour Code, groups of workers are authorized to submit draft collective agreements. The Committee emphasizes in this regard that the Convention refers to the promotion of collective negotiation between employers or their organizations and workers’ organizations and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of such organizations. In these conditions, the Committee once again requests the Government to take measures to amend the legislation in this regard and to provide information in its next report on any step that has been taken for this purpose;

n      by virtue 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 propose draft texts or subscribe to the one that has been submitted. In this connection, taking into account the comments made in the previous paragraph, the Committee reiterates that this provision is not in conformity with Article 4 of the Convention and requests the Government to take measures to repeal it. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

Finally, the Committee regrets to note that the Government has not provided its observations on the comments made by the National Inter-enterprise Trade Union of Metallurgy, Communications, Energy and Allied Workers (SME) dated 12 May 2004 which refer to the State’s failure to provide workers with sufficient protection against anti-union practices and the inefficiency and delays affecting labour courts and labour inspectors as well as the lack of such inspectors and the consequent prolonging of situations not in conformity with the law. The trade union organization holds that although the provisions of the Labour Code provided for sanctions for cases of anti-union acts, such provisions are not applied in practice and, moreover, the fines are not sufficiently dissuasive. The Committee requests the Government to send its comments in this respect.