Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the Government’s report and its reply to the comments of the National Inter-enterprise Trade Union of Metallurgy, Communications, Energy and Allied Workers (SME), dated 9 January 2006, and of the National Confederation of Municipal Employees of Chile (ASEMUCH), dated 25 May 2006, which refer to matters already raised by the Committee and to other issues covered below.

The Committee recalls that it has been asking the Government for several years to amend or repeal various legislative provisions, or to take steps to ensure that certain workers are afforded the guarantees laid down in the Convention. Specifically, the Committee asked the Government in its previous observation to take steps to:

–      repeal 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;

–      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. The Committee notes the Government’s statement that the amendment introduced by Act No. 19759 limits that possibility, requiring the payment of a bond of four units of account (UF) for each worker hired as a replacement. In this respect, the Committee recalls that the contracting of workers to break a strike in a sector not considered as essential in the strict sense of the term for the purposes of prohibiting strikes, constitutes a serious violation of the freedom of association;

–      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. The Committee notes the Government’s statement that the list containing the establishments covered by section 384 is drawn up jointly by the Ministries of Labour and Social Security, National Defence and the Economy, Development and Reconstruction in July each year and that the list for 2006 was much shorter than in previous years, with the removal of sanitary services and port enterprises from the list and the extension to them of the right to strike. Nevertheless, the Committee observes that the list includes some private port terminals and also the Arica–La Paz railway, which cannot be considered as essential services in the strict sense of the term;

–      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 observes that the Government states that it has noted the Committee’s observations in this respect and that these will be taken into consideration in forthcoming discussions for bringing the legislation into conformity with the provisions of the Convention. The Committee regrets that, for several years since the ratification of the Convention, numerous restrictions have continued to be placed on the exercise of the rights established by the Convention. The Committee hopes that the Government will take all the necessary steps to amend the legislation in order to bring it into full conformity with the provisions of the Convention. The Committee requests the Government to supply information in its next report on all measures taken in this respect.

Moreover, with regard to the preparation of a draft revision of the Constitutional Organic Act on Municipalities, No. 18695, the Committee requests the Government once again to make every effort in the accompanying consultation process to take account of the principle whereby the prohibition of the right to strike in the public service should be limited to officials exercising authority in the name of the State and hopes that the final text will take account of this principle.

Finally, the Committee notes the communication dated 28 August 2007 from the International Trade Union Confederation (ITUC), which refers to the issues raised by the Committee and also to the prohibition of the right to strike imposed on agricultural workers during harvest time. The Committee requests the Government to send its comments in this respect.