Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments from the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning the application of the Convention. With regard to the comments dated 24 March 2009 from the National Inter-Enterprise Union of Airport Workers of Chile and other unions in various sectors and the comments dated August 2009 from the ITUC, the Committee notes the Government’s indication that it will send its observations as soon as possible. The Committee is awaiting to receive the Government’s observations.

In its previous comments the Committee 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. The Committee notes that the Government welcomes this observation and expresses its willingness to take account of it in the forthcoming legislative discussions, and will provide information on any changes that occur in this matter;
• – 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 accords 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 the Government’s statement that although there are limitations on the participation of these workers in regulated collective bargaining, these workers are able to take part in unregulated collective bargaining resulting in the conclusion of collective labour agreements that have an effect identical to those of collective labour agreements signed in conformity with the provisions of regulated collective bargaining. The Committee requests the Government to provide examples of unregulated collective bargaining in which remuneration for apprentices is determined, indicating the number of apprentices covered by collective agreements in the country;
• – 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. The Committee notes the Government’s indication that a legal reform of the collective bargaining system for entities which may not engage in collective bargaining is an issue of parliamentary debate of current and future relevance and various items of draft legislation are before the Congress with a view to amending the legal provisions in force in this area, and one of these drafts was rejected for lack of a quorum. The Committee notes a number of legal or constitutional difficulties relating to collective bargaining in the public sector which have been referred to in the discussions (according to the Government’s report), but it emphasizes that the Convention is compatible with special methods of application in the public service. The Committee recalls that, under the terms of Articles 5 and 6 of the Convention, only 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 referred to above should enjoy the right to collective bargaining in law and in practice;
• – section 334(b), which 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 confer representation on the trade union concerned in an assembly, by secret ballot and in the presence of a public notary. The Committee notes that the Government reiterates that it will take account of these comments in future legal discussions;
• – 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 not 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 welcomes the Government’s statement that it will take account of these comments in due course. 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. In its previous comments the Committee noted a bill 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 all workers in the enterprise of the submission of a draft collective accord so that they can propose draft texts or agree to the draft submitted. The Committee notes the Government’s statement that the purpose of this provision is to promote and facilitate collective bargaining together with other provisions relating to the same subject, and to establish order and peace so that the enterprise is not exposed to repeated bargaining procedures which waste time and affect productivity at the levels of both management and workers; according to the Government, this provision does not affect voluntary collective bargaining and only applies to regulated collective bargaining. The Committee recalls that direct bargaining between an enterprise and its workers, over and above representative organizations where these exist, may be detrimental to 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.

While noting the information supplied by the Government, the Committee emphasizes that significant restrictions have continued for years on the exercise of the rights established in the Convention. The Committee has noted certain draft reforms which had an impact on the application of the Convention (the reform relating to collective bargaining and the right to strike of public servants, which was rejected for lack of the constitutional quorum required for its adoption; the reform of the Constitutional Organic Act on municipalities, No. 18695, which was shelved following its rejection by the Chamber of Deputies; and the reforms relating to the collective bargaining system, which are at the first stage of the constitutional process).

The Committee underlines the importance of the pending issues and expresses the firm hope that the Government will take the necessary measures to amend the legislation to bring it into full conformity with the provisions of the Convention. The Committee again requests the Government to provide information in its next report on all specific measures taken in this respect.