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

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

The Committee takes note of the Government’s report and its response to the comments of 8 January 2006 by the National Inter-Enterprise Union of Metal, Energy, Communication and Allied Workers (SME), which referred to the following matters:

–           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”, and section 305(1), which provides that workers governed by an apprenticeship contract and those engaged solely for a specific task or activity, or for a specific period, may not engage in collective bargaining. The Committee notes that, according to the Government, the reason for this prohibition is that services are provided on a temporary basis and in any event for a shorter time than the period of validity of a collective instrument (two years). The Government adds that section 314(2) of the Labour Code allows unions of temporary or casual workers to come to agreements with one or more employers on common conditions of work and pay for certain temporary or seasonal tasks or activities. Furthermore, despite the limitation, apprentices’ wages are protected within the framework of the statutory definition of “minimum wage”. While noting the Government’s statement that it will take account of the SME’s comments in future legal discussions, the Committee would again point out that, according to 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.

–           Section 334(b) provides that two or more unions of different enterprises, an inter-enterprise union or a federation or confederation may submit draft collective labour contracts on behalf of their members and the workers who agree to the contracts, but in order to do so it shall be necessary in the enterprise concerned for an absolute majority of the worker members who are entitled to engage in collective bargaining to accord representation to the trade union concerned in an assembly, by secret ballot and in the presence of a public notary. In the Committee’s view, these requirements are difficult to meet and do not adequately promote collective bargaining, and should accordingly be abolished or amended.

–           Section 334bis, which provides that for employers, bargaining with the inter-enterprise union shall be voluntary or optional and that where an employer refuses, the workers who are members of the inter-enterprise union may submit draft collective contracts in accordance with the general rules set forth in Book IV (on collective bargaining). The Committee notes that, according to the Government, the rules on collective bargaining for groups of workers other than the enterprise union are optional for the employer, who chooses whether or not to initiate the bargaining procedure. The employer must notify his decision within ten days of the submission of the draft agreement, otherwise the negotiating process is initiated. While noting the Government’s statement that it will take into account the SME’s comments in future legal discussions, the Committee considers that these provisions do not, generally speaking, adequately promote collective bargaining with trade union organizations.

The Committee has also, for several years, been commenting on the following matters:

–           Section 304 of the Labour Code, which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or that are connected to the Government through this Ministry, and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget of either of the last two calendar years, either directly or through duties or taxes. The Committee observes that the Government indicates that it has taken note of these observations and will take them into account in future legal discussions.

–           Section 1 of the Labour Code, which provides that the Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those in which the State contributes or in which it participates or is represented, provided that such officials or workers are subject by law to special regulations. The Committee notes that, according to the Government, Act No. 19673 incorporates officials of the National Congress in the regime established for officials of the State Administration (Act No. 19296), which allows them to set up their own associations of public servants. The Committee nonetheless observes that the abovementioned regime does not envisage a right to collective bargaining, and again points out that, except for officials engaged in the administration of the State, workers in the service of the National Congress and the judiciary, like workers in state enterprises or institutions or those to which the State contributes or in which it participates or is represented, should enjoy the right to collective bargaining.

–           Sections 314bis and 315 of the Labour Code, which provide that groups of workers, other than unions, may submit draft collective agreements. The Committee notes that the Government gives the legislative origin of these provisions and indicates that under them, a union of an enterprise or establishment may, by reason of its trade union status, bargain collectively, whereas groups of workers who join forces in order to negotiate have to meet quorum and percentage requirements established by law in order to form a union in the enterprise or one of its establishments. Although the legislation authorizes collective bargaining for groups of workers, it also lays down a number of minimum conditions and formalities allowing a presumption that there is a collective will to negotiate on the part of the workers involved. The Government adds that, at present, in many enterprises collective agreements and contracts concluded indifferently by groups of workers or trade unions exist side by side. The Committee points out that direct bargaining between an enterprise and its workers, over and above representative organizations where these exist, may in some cases be to the detriment of the principle that collective bargaining between employers’ and workers’ organizations is to be encouraged, and that groups of workers should be able to negotiate collective agreements or accords only in the absence of such organizations.

–           Section 320 of the Labour Code, which places an obligation on employers to notify to all workers in the enterprise the submission of a draft collective agreement so that they can propose draft texts or agree to the draft submitted. The Committee notes that, according to the Government, the purpose of this provision is to allow the greatest possible number of authorized workers to negotiate collectively. The Committee refers the Government to its comment in the previous paragraph.

The Committee notes with regret that, although the Convention was ratified some years ago, there are still numerous restrictions on the exercise of the rights enshrined in the Convention. The Committee expresses the hope that the Government will take the necessary steps to amend the current legislation on all the points mentioned above, in order to allow workers to enjoy fully the safeguards established in the Convention. The Committee requests the Government to keep it informed of all measures adopted to this end.

Lastly, the Committee notes the communication of 28 August 2007 from the International Trade Union Confederation (ITUC) referring to a number of issues examined by the Committee, and to the dismissal of trade unionists and the pressure exerted to get members to give up  union membership and the collective agreement, and threats to workers to get them to sign a collective agreement followed by subsequent pressure for them to conclude individual agreements in one company. The Committee requests the Government to send its comments on the above.