Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Chile (Ratification: 1971)

The Committee notes the Government’s communication, received on 11 September 2013, in reply to the observations of the Federation of Unions of Supervisors Rol A and Professionals of CODELCO Chile (FESUC), received on 14 June 2012.

Article 1 of the Convention. Grounds of discrimination. Legislation. In its previous comments, the Committee noted that Act No. 20609 of July 2012, establishing measures to combat discrimination, does not include the criteria of colour, national extraction and origin among the prohibited grounds of discrimination. However, these criteria are contained in section 2 of the Labour Code. In this regard, the Committee requested the Government to indicate the manner in which these sections are articulated in practice and to provide information on the effect given in practice to Act No. 20609. The Committee notes the Government’s reference in its report to Opinion No. 3704/134 of 11 August 2004 issued by the General Directorate of Labour, analysing article 19(16), third subparagraph, of the Political Constitution, which prohibits any discrimination that is not based on the capacity or suitability of the individual, and concludes that this constitutional provision permits a wider meaning to be given to the legal wording contained in section 2 of the Labour Code and accordingly to apply to other differences of treatment in the field of labour not specified in that provision. The Government also provides the case law harmonization ruling of the Supreme Court of 5 August 2015, in which the Supreme Court extends the criteria of discrimination envisaged in the fourth subparagraph of section 2 of the Labour Code to all types of arbitrary discrimination and differences prohibited by article 19(16) of the Political Constitution and by the Convention. It adds that the criteria of discrimination cannot claim to be exhaustive, as they are narrower than the protection afforded by the constitutional provision. While noting this information, the Committee requests the Government to provide information on the effect given in practice to Act No. 20609 and the case law harmonization ruling of the Supreme Court of 5 August 2015, under the terms of which any discrimination is prohibited which is not based on the capacity or suitability of the individual.

Discrimination based on sex. Legislation. The Committee has been referring for many years to the need to amend section 349 of the Code of Commerce with a view to granting equal rights to spouses to conclude a commercial partnership agreement and so that women who when entering into marriage did not choose the separate property regime can conclude a commercial partnership agreement without the need for special authorization from their husband. In this regard, the Committee notes that section 5(5) of the Bill to amend the Civil Code and other legislation provides for the amendment of section 349 of the Code of Commerce and removes the requirement for the authorization of the husband so that the wife can enter into a commercial partnership agreement. The Committee observes that the Bill has been going through its second constitutional procedure in the Senate since 3 September 2013. The Committee trusts that the Bill to amend the Civil Code and other legislation will be adopted soon, as it provides for the amendment of section 349 of the Code of Commerce with a view to eliminating the requirement for the authorization of the husband for a woman to be able to enter into commercial partnership agreements. The Committee requests the Government to provide information on any developments in this regard.

Article 2. Conditions of work and remuneration. With regard to the observations made by the FESUC, the Committee recalls that they refer to: (i) workers recruited by the enterprise since 2010, who in their majority are women and who receive lower pay and do not benefit from the same working conditions as those recruited previously; and (ii) the code of conduct of the enterprise, which discourages political activities by employed persons, even outside working time. In this regard, the Committee notes that, according to the Government, the enterprise indicates that only one complaint for alleged discrimination on the grounds of age has been made in the context of the employment contract. According to the complaint, the collective agreement, freely concluded by the complainant union, contained differentiated benefits based on when the worker entered the enterprise. The Government indicates that according to the enterprise the complaint was set aside by the courts on the grounds that there were no discriminatory acts. The enterprise adds that all the remuneration and conditions of work set out in the collective agreements are the outcome of free and voluntary collective bargaining and that they do not contain discriminatory clauses. The Committee also notes the denial by the enterprise that the code of commercial conduct and ethics that it promotes is in violation of fundamental rights, as political rights are fully recognized and there are also legal remedies for their protection, which afford a guarantee to workers against variables other than their capacities and suitability influencing their conditions of work. The Committee requests the Government to continue to provide information in this regard.

Pensions. In previous comments, the Committee noted the observations made by the National Association of Public Employees (ANEF), the Association of Employees of the National Women’s Service (SERNAM), the College of Teachers of Chile AG, the National Confederation of Trade and Services and the Confederation of Unions in the Banking and Financial System of Chile, according to which the current private pensions system, which is based on a fully-funded system, is discriminatory in relation to women due to the use of differentiated mortality scales for men and women. This implies that a man and a woman worker with equal accumulated funding who take retirement at the same age would receive annuities of differing amounts based solely on their gender. In this connection the Committee requested the Government to provide information on the real impact of the use of differentiated mortality scales from their introduction up to the current time on the basis of the actual amounts of benefits received by pensioners. The Committee notes the adoption on 29 April 2014 of Supreme Decree No. 718 creating the Presidential Advisory Commission on the Pensions System. The Committee observes that the proposals contained in the final report of the Presidential Advisory Commission on the Pensions System of September 2015 include the elimination of the calculation of differentiated mortality scales by sex and their replacement by unisex scales based on a uniform calculation of life expectancy. The Committee once again requests the Government to provide information on the real impact of the use of differentiated mortality scales from their introduction up to the present time based on the specific amounts of the benefits received by pensioners. The Committee also requests the Government to provide information on the action taken as a result of the final report of the Presidential Advisory Commission on the Pensions System in relation to the elimination of the calculation of differentiated mortality scales by gender.

The Committee is raising other matters in a request addressed directly to the Government.