Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee notes the comments of 24 March 2009 sent by the National Inter-Enterprise Union of Airport Workers of Chile and other unions from various sectors in a lengthy communication covering numerous matters, and also the comments of August 2009 made by the International Trade Union Confederation (ITUC). The Committee requests the Government to send its observations in this respect, and also on the comments of the ITUC of 28 August 2007 (the Government declares that it has requested information from the competent authorities and will send it once it has been received).

The Committee recalls that in its previous comments it referred to the following provisions of the Labour Code which are not in conformity with the provisions of the Convention:

–      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;

–      section 82 of the Labour Code, which provides that the remuneration of apprentices may on no account 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;

–      section 304 of the Labour Code, which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or which 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;

        While appreciating the Government’s statement in which it indicates that it will take account of the observations made in this respect, the Committee recalls that, in accordance with Articles 5 and 6 of the Convention, only members of the armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining. The Committee therefore considers that the categories of workers mentioned above should enjoy the right to 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. The Committee appreciates the Government’s statement that it will take account of these comments in future legal discussions. In the Committee’s view, these requirements are difficult to meet and do not 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 appreciates the Government’s statement that it will take account of these comments at the appropriate time. The Committee considers that these provisions do not, generally speaking, adequately promote collective bargaining with trade union organizations;

–      sections 314bis and 315 of the Labour Code, which provide that groups of workers, even when there are unions, may submit draft collective agreements. The Committee notes the Government’s statement that a draft Act is currently under examination which contains various amendments to the current legislation on collective bargaining and will enable collective bargaining to be undertaken by groups of workers formed for this purpose solely in enterprises where there is no existing trade union;

–      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 the Government undertakes to keep the Committee informed of any measures adopted in this regard in the future. The Committee recalls that direct bargaining between an enterprise and its workers, over and above representative organizations where these exist, may 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.

Although it appreciates that the Government is open to the introduction of improvements in relation to the application of the Convention, the Committee emphasizes that significant restrictions on the exercise of the rights established in the Convention have continued to occur for a number of years. The Committee expresses the hope that the Government will take the necessary steps to amend the legislation to bring it into full conformity with the provisions of the Convention. The Committee requests the Government to provide information in its next report on all specific measures adopted in this respect.