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

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

Article 2 of the Convention. Right of workers to establish organizations of their own choosing. The Committee notes that Act No. 20.940 (Modernization of the Labour Relation System) introduces a new requirement for the establishment of trade unions in enterprises with 50 or fewer workers, adding to the current requirement of at least eight workers, the additional requirement to represent a minimum of 50 per cent of the total number of workers. The Committee notes the allegations of the General Confederation of Public and Private Sector Workers (CGTP) that this new requirement makes it difficult to establish trade unions and considers that it will result in the disappearance of trade unions in many workplaces. The Committee requests the Government to provide its comments on the CGTP observations.

Article 3. The right of organizations to organize their activities and to formulate their programmes. In its previous comments, the Committee requested that measures be taken to amend various provisions of the Labour Code relating to the exercise of the right to strike.

• -With regard to the provisions relating to strike ballots, requiring excessive majorities to call a strike (sections 372 and 373 of the Labour Code, requiring an absolute majority of workers of the respective enterprise concerned by the negotiation), the Committee notes the Government’s indication that Act No. 20.940 maintains the requirement of a majority vote by those concerned (absolute majority of the workers represented by the trade union in new section 350 of the Labour Code) but workers would not be counted in the voting quorum if they are not currently working in the enterprise due to medical leave or a statutory holiday, or those who, due to the requirements of the enterprise, are not in their usual place of work. While it welcomes the fact that, in response to the Committee’s comments, these categories have been removed from the calculation of the quorum, the Committee once again recalls that, so as not to unduly limit the right of workers’ organizations to organize their activities, the legislative provisions requiring a vote by workers before a strike should ensure that account is taken only of the votes cast (and not of all workers who are entitled to vote), and that the required quorum and majority are fixed at a reasonable level. The Committee requests the Government to take the necessary measures in this regard. The Committee further welcomes that, as indicated by the Government, the prohibition has been lifted on the holding of meetings on the day of the vote, and the requirement has been established for the employer to enable workers to take part in the vote.
• -With regard to the previous request to repeal the prohibition on strike action in non-essential services in the strict sense of the term (section 384), the Committee notes that, according to the Government, the total repeal of the prohibition in section 384 is being replaced by a system of minimum services agreed between the enterprise and trade unions, in accordance with sections 359–361. The Committee also notes that new section 363 (regarding enterprises in which the right to strike may not be exercised) provides that workers cannot call a strike if they are engaged in corporations or enterprises, regardless of their nature, objective or function, which provide public utility services or services the interruption of which would seriously endanger the health, the national economy, public supply or national security. The Committee observes again in this respect that this definition of enterprises in which the right to strike cannot be exercised, to be approved jointly by various ministries and subject to appeal to the Appeal Court, potentially covers services which go beyond the definition of essential services in the strict sense of the term (those the interruption of which may endanger the life, personal safety or health of the whole or part of the population). The Committee is bound to reiterate that the concepts of public utility and of damage to the economy are broader than that of essential services. The Committee also observes that “services of public utility” would already be covered by the system of minimum services established in section 359. Recalling that the prohibition on strikes relating to the services provided should be limited to essential services in the strict sense of the term, the Committee requests the Government to provide information on the application in practice of section 363 of the Labour Code.
• -With regard to the rule in section 374 of the Labour Code (which required that, once a strike had been called, it must be carried out within three days, otherwise the workers were deemed to have refrained from the strike and accepted the employer’s final offer), the Committee observes that new section 350 of the Labour Code simply establishes that the strike shall commence from the beginning of the fifth day of its approval. The Committee observes that the decision on the start date of a strike should be left to the workers. The Committee requests the Government to provide information on the practical application of this provision, in particular to indicate whether the five-day period is a minimum cooling-off period or a mandatory strike initiation deadline, and what, if any, are the consequences or obligations for the union should it wish to initiate the strike at a later date.
• -With regard to section 385 of the Labour Code (which provides that, in the event of a strike which by reason of 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), the Committee observed that it should be the judicial authorities, at the request of the administrative authorities, which may order the resumption of work only in cases of acute national crisis or where the interruption of the services would endanger the life, personal safety or health of the whole or part of the population, and that in such cases workers should enjoy adequate compensatory guarantees, for example, conciliation and mediation procedures and, in the event of deadlock, arbitration machinery, which have the confidence of the parties. The Committee notes the Government’s indication that the section has been amended to attribute this function to the labour courts (new section 363). While noting with interest the attribution to the judicial authorities of decisions concerning the resumption of work, the Committee requests the Government to provide information on the application of this provision in practice, as well as on the compensatory guarantees envisaged for workers who may be affected.

The Committee notes that, as a general matter, the labour reform has not changed the fact that the exercise of strikes is still regulated exclusively within the framework of regulated collective bargaining. In this respect, the Committee notes that the CGTP and the International Trade Union Confederation (ITUC) report the failure to protect strikes outside the context of regulated bargaining. The Committee also notes the following recommendations made to the Government by the Committee on Freedom of Association (CFA), in which: (i) given that existing legislation does not permit strike action outside of the context of the collective bargaining process, the CFA requested the Government, in consultation with the workers’ and employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of freedom of association (Case No. 2814, 367th Report, paragraph 365); and (ii) recalling the principle that the occupational and economic interests which the workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers, the Committee requested the Government to take all appropriate measures, including legislative if necessary, to uphold this principle, and submit to the Committee the legislative aspects of the case (Case No. 2963, 371st Report, paragraph 238). The Committee also notes that a ruling of 23 October 2015 of the Appeal Court of Santiago upheld that the sole fact that the law regulates strike action in one instance, that is in the context of regulated collective bargaining, cannot lead to the conclusion that outside that context strikes are prohibited, based on the understanding that matters that the legislator has failed to regulate or define are held to be prohibited. The Committee requests the Government to provide its comments on the observations of the ITUC and the CGTP, as well as on the measures taken in relation to the above recommendations on these matters.

Application of the Convention in practice. The Committee notes the CGTP allegations in its observations that the courts have denied the capacity of the trade union to represent its members, for example in relation to breaches of a collective agreement, or that, on occasion, they require a written mandate from all worker members. The Committee requests the Government to provide its comments in that respect.

The Committee also notes that in its observations the CGTP alleges that the labour reform facilitates the interference of employers in trade union affairs, through the amendment of section 297 of the Labour Code to provide that the employer may submit a reasoned request for the dissolution of a trade union for serious non compliance with obligations imposed by law or for no longer complying with the requirements for its establishment (as substantiated by a ruling of the labour tribunal). The Committee requests the Government to provide information on the application of this provision in practice.