Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Chile (Ratification: 1999)

The Committee notes the Government’s report. The Committee also notes the comments of the National Inter-Enterprise Union of Metallurgists, Energy, Communication and Allied Branches (SME), of 9 January 2006, and of the National Confederation of Municipal Employees of Chile (ASEMUCH) of 25 May 2006. The Committee notes that the SME refers to legislative issues already raised by the Committee and that it raises objections to section 11 of Act No. 12927 on the internal security of the State, which provides that any interruption or collective suspension, stoppage or strike in public services or services of public utility, or in production, transport or commercial activities which is not in accordance with the law and results in prejudice to the public order or to compulsory legal functions or damage to any vital industries shall constitute an offence and be penalized with imprisonment or banishment. In this respect, the Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, both excessive recourse to the courts in labour relations and the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all they should be justified by the seriousness of the offences committed and should be subject to normal judicial review (see 1994 General Survey on freedom of association and collective bargaining, paragraph 177). The Committee therefore requests the Government to take the necessary measures to repeal the above provision so as to bring the legislation into conformity with the provisions of the Convention and to provide information in its next report on any measure adopted in this respect.

The Committee also notes the indication by ASEMUCH that neither its comments nor those of the Committee have been taken into account and that the draft text of Act No. 18695 setting forth the constitutional framework for municipal authorities, which would abolish the right to strike of municipal officials and affect their rights in terms of stability of employment, training, qualifications and remuneration, has not been amended. The Committee notes the Government’s indication that in 2005 a tripartite working group met, with the participation of representatives of the Government and of ASEMUCH, but that the negotiations broke down. Considering that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158), the Committee requests the Government to continue making every possible effort during the process of consultation on the above draft legislation and to keep it informed of any legislative developments in this connection.

The Committee also recalls that for several years it has been requesting the Government to amend or repeal a number of legislative provisions, or to take steps to secure for certain workers the guarantees afforded by the Convention. The Committee regrets to note that the Government’s report does not contain any information on this subject. More specifically, the Committee requested the Government to:

–      ensure that officials of the judiciary are afforded the guarantees set forth in the Convention;

–      amend article 23 of the Political Constitution which provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for trade union officials who participate in party political activities;

–      amend sections 372 and 373 of the Labour Code, under which an absolute majority of the workers of the enterprise is required for a decision to strike;

–      amend section 374 of the Labour Code, under which a strike must be carried out within three days of the decision to call it, otherwise the workers of the enterprise concerned shall be deemed to have refrained from going on strike and so accept the employer’s final offer;

–      amend section 379 of the Labour Code which provides that at any time the group of workers concerned by the negotiations may be called upon to vote, by at least 20 per cent of them, for the purpose of taking a decision, by absolute majority, to censure the negotiating committee, in which case a new committee shall be elected forthwith;

–      amend section 381 of the Labour Code containing a general prohibition on the replacement of striking workers, but which provides for the possibility of such replacement subject to compliance by the employer with certain conditions in the final offer during the negotiating process;

–      amend section 384 of the Labour Code which provides that strikes may not be called by workers in enterprises which provide public utility services or services the interruption of which would seriously endanger the health, public supply, the national economy or national security (the third paragraph of section 384 provides that, in such cases, if no agreement is reached between the parties to the bargaining, the matter shall be referred to compulsory arbitration). The Committee noted that the definition of services in which strikes may be prohibited, as set out in section 384, as well as the list drawn up by the government authorities, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (for example, port enterprises, the Central Bank and the railway);

–      amend or repeal section 385 of the Labour Code which provides that, in the event of a strike which by its nature, timing or duration causes a serious risk to health, the supply of goods or services to the population, the national economy or national security, the President of the Republic may order the resumption of work;

–      amend section 254 of the Penal Code which provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees; and

–      amend section 48 of Act No. 19296 which grants broad powers to the Directorate of Labour for supervision of the accounts and financial and property transactions of associations.

The Committee hopes that the Government will take all the necessary measures to amend the legislation so as to bring it into full conformity with the provisions of the Convention and requests it to provide information in its next report on any measure adopted in this respect.