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

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

The Committee notes the Government’s report and the comments made by the National Inter-Enterprise Union of Metallurgists, Energy, Communication and Allied Workers, of 8 January 2006, and the National Confederation of Municipal Employees of Chile (ASEMUCH), of 25 May 2006. The Committee notes that ASEMUCH’s comments relate to draft legislation which would deny organizations of municipal employees the right to collective bargaining, in relation to which the Committee requested the Government in its previous observation to consult the trade union organizations concerned, and it notes the indication by ASEMUCH that the draft legislation has not been reformulated. The Committee notes the Government’s indication that a tripartite working party met in 2005 with the participation of representatives of the Government and of ASEMUCH, but that the negotiations broke down. In this respect, the Committee recalls the importance that has to be attached to the holding of frank and exhaustive consultations on any matter or planned legislation which affects trade union rights and it requests the Government to ensure that the draft legislation in question is in accordance with the Convention.

The Committee notes that the Government has not sent its observations on the comments that it has been making for several years on the following issues:

–           section 304 of the Labour Code does not allow collective bargaining in 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 recalls once again that this provision is not in conformity with the Convention. The Committee requests the Government to take the necessary measures to ensure that 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;

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

–           sections 314bis and 315 of the Labour Code provide that groups of workers, who are distinct from trade unions, may submit draft collective agreements. In this respect, the Committee emphasizes 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. Under 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 developments in this respect;

–           section 320 of the Labour Code places the obligation on employers 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 draft submitted. In this respect, 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. The Committee requests the Government to take measures to repeal this provision. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

Finally, the Committee regrets to note that the Government has not provided its observations on the comments made by the Inter-Enterprise Union of Metallurgists, Energy, Communication and Allied Workers (SME) referring to: (1) section 82 of the Labour Code, which provides that “in no event may the remuneration of apprentices be determined by means of collective agreements or contracts or arbitration awards issued in the context of collective bargaining”; (2) section 305(a) provides that workers governed by an apprenticeship contract and those engaged exclusively to work on a specific task, activity or for a specific period may not engage in collective bargaining; (3) section 334(b) provides that two or more unions from different enterprises, an inter-enterprise union or a federation or a confederation may submit draft collective labour contracts on behalf of their members and the workers who support them, but in order to do so it shall be necessary in the enterprise concerned for the absolute majority of the workers who are members to accord representation to the trade union organization concerned for the right to engage in collective bargaining in an assembly by secret ballot and under oath; and (4) section 334bis provides that it shall be voluntary or optional for the employer to negotiate with the inter-enterprise union and in the event that the workers in the enterprise who are members of the inter-enterprise union fail to give their consent they may submit draft collective contracts in accordance with the general rules of Book IV (on collective bargaining). With reference to points 1 and 2, the Committee recalls that, under the terms of Articles 5 and 6 of the Convention, only the armed forces, the police and public officials engaged in the administration of the State may be excluded from collective bargaining. With regard to points 3 and 4, the Committee considers that the provisions in question do not adequately promote collective bargaining with trade union organizations. The Committee therefore requests the Government to take the necessary measures to amend or repeal sections 82, 305(c), 334(b) and 334bis to bring the legislation into conformity with the Convention. The Committee requests the Government to keep it informed of any legislative developments in this respect.