Observation (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)

The Committee notes the observations of the World Federation of Trade Unions (WFTU) received on 7 March 2014; the joint observations of the National Confederation of Trade Unions of the Bread and Food Industry Workers (CONAPAN), the National Federation of Unions of Bus and Truck Drivers, and Allied Activities of Chile (FENASICOCH), the Inter-Enterprise Union of Workers of Líder Supermarkets, the Federation of the United Workers’ Union (AGROSUPER), the Inter Enterprise Union of Subcontracting Enterprises (SITEC), the Inter Enterprise Union of Actors of Chile (SIDARTE), the National Inter Enterprise Union of Professionals and Technicians of the Film and Audio visual Industry (SINTECI), the Federation of ENAP Contractor Workers of Concón, the Inter-Enterprise Union of Professional Footballers, the Federation of Trade Unions of Workers of ISS Holding Companies and Subsidiaries, and General Services (FETRASSIS) and the Inter-Enterprise Union of Domestic Workers, received on 22 April 2014; the observations of the International Trade Union Confederation (ITUC), received on 1 September 2014 and 31 August 2016; and the observations of the General Confederation of Public and Private Sector Workers (CGTP), received on 31 August 2016, all of the abovementioned observations referring to the application of the Convention in law and practice. The Committee requests the Government to send its observations in this regard. The Committee notes the communication from 53 trade union leaders, received on 1 September 2016, expressing their concern at the ruling by the Constitutional Court of 9 May 2016 on the draft law modernizing the labour relations system. The Committee also notes the observations of the Confederation of Production and Commerce (CPC) and the International Organisation of Employers (IOE), received on 29 August 2014, as well as the observations of the IOE of a general nature, received on 1 September 2014 and 1 September 2016.

The Committee notes that a complaint under article 26 of the ILO Constitution alleging non-compliance with this and other ILO Conventions by the Republic of Chile, submitted by a Worker delegate to the 2016 International Labour Conference, was declared receivable and is pending before the Governing Body.

The Committee notes the adoption of Act No. 20.940 (Modernization of the Labour Relations System) which will enter into force on 1 April 2017, during the preparation of which the Government reports that consultations were held with a large number of social partners and that the previous comments of the Committee and ILO technical support were taken into consideration.

Articles 2 and 3 the Convention. Legislative matters. In relation to its requests in previous comments to amend or repeal the following provisions of the Labour Code which are not in conformity with the Convention, the Committee notes with satisfaction the following measures:

• -Recognition for officials of the judiciary of the guarantees set forth in the Convention. The Government indicates that Act No. 20.722 of 2014 includes officials of the judiciary within Act No. 19.296 on Associations of Public Servants, which regulates the right to organize of public servants in Chile and, therefore, all entities of the judiciary have access to the guarantees of the Convention.
• -Elimination of the requirement, under section 346 of the Labour Code, for non-unionized workers to whom the benefits set out in a collective agreement have been extended, to pay 75 per cent of standard monthly union dues thereby assuring that these clauses are the result of free negotiation between workers’ organizations and employers. The Government indicates that this requirement, as well as the unilateral extension by the employer of the benefits set out in a collective agreement, have been abolished by Act No. 20.940.
• -Elimination of the rule relating to the procedure to censure the negotiating committee, set out in section 379 of the Labour Code, which provided that at any time at least 20 per cent of the group of workers concerned by the negotiations may call for a vote, for the purpose of censuring the negotiating committee by absolute majority, in which case a new committee shall be elected by the same decision. The Committee considered that this clause may give rise to acts of interference with the right of trade unions to organize their activities and that these matters should be dealt with solely in trade union statutes.
• -Prohibition to replace striking workers (which was previously possible under certain conditions set out in section 381 of the Labour Code) and introduction of sanctions in the event of such a replacement – deeming it a serious, unfair practice and setting out a fine for each worker replaced (new sections 345, 403 and 407 of the Labour Code).

As regards the replacement of striking workers, the Committee notes however the CGTP’s allegations that certain provisions introduced by the labour reform could undermine or introduce uncertainty into the prohibitions established, and particularly new section 306 of the Labour Code, which establishes the possibility for an enterprise that has subcontracted work or services to another enterprise to carry out directly or through a third party the subcontracted work or services interrupted due to a strike (in this respect, the CGTP alleges that more than 50 per cent of the workers in the country work in subcontracting enterprises). The Committee requests the Government to provide its comments on the observations of the CGTP and to report on the application in practice of sections 345, 403, 407 and 306, including the sanctions imposed for the use of replacement of striking workers and the impact from workers hired under section 306 on the workers or services interrupted due to a strike.

The Committee also notes the Government’s indication that it has not been able to address the following issues raised in previous comments:

• -With regard to the request to amend article 23 of the Political Constitution (which provides that the holding of trade union office is incompatible with active membership of a political party and that the law shall establish penalties for trade union officials who engage in party political activities), the Committee welcomes the information provided by the Government, indicating that a draft constitutional reform was submitted in October 2014 to remove these restrictions on union and neighbourhood leaders, but notes the Government’s indication that the draft was not approved due to a shortfall of two votes in favour (having obtained 72 of the 74 votes necessary to meet the requirement of four-sevenths of the deputies needed to approve such a reform).
• -With regard to the request to amend section 48 of Act No. 19.296 (which grants broad powers to the Directorate of Labour for the supervision of the accounts and financial assets and property of associations), the Committee notes the Government’s indication that the amendments have not been made, but that through a Protocol Agreement between the Government and the Public Sector Round-Table of 2014, an agreement was reached under which possible amendments to Act No. 19.296 must be considered, and that the approach adopted by the Labour Directorate in that regard is consistent with the principles of freedom of association, leaving it to organizations to control their own accounts, financial assets and property.
• -With regard to the request to repeal section 11 of Act No. 12.927 concerning the Internal Security of the State (which provides that an interruption or strike in certain services may be penalized with imprisonment or banishment) and to amend section 254 of the Penal Code (which establishes criminal penalties in the event of the interruption of public services or public utilities or dereliction of duty by public employees), the Committee notes the Government’s indication that these provisions have not been repealed or amended, although it adds that they have not been applied during the reporting period. In this respect, the Committee recalls that no penal sanction should be imposed on a worker for participating peacefully in a strike, which is merely exercising an essential right, and therefore that sentences of imprisonment or fines should not be imposed.

The Committee expresses the hope that the Government will take the necessary measures in the very near future to bring these provisions into conformity with the Convention.

In its previous comments, the Committee also called for the right to strike to be guaranteed to agricultural workers. The Committee notes the Government’s indication that agricultural workers are regulated by general provisions and have the right to strike under the same terms as other workers. The Government specifies that only seasonal agricultural workers are not guaranteed effective enjoyment of this right under the law. The Committee is bound to recall once again that seasonal agricultural workers do not fall into any of the categories for which the right to strike may be restricted (essential services in the strict sense of the term or public servants exercising authority in the name of the State). The Committee requests the Government to take the necessary measures to ensure in law and practice that seasonal agricultural workers can enjoy the right to strike in the same way as other workers. The Committee requests the Government to provide information in that respect.

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