Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the Single Central Organization of Workers of Chile (CUT-Chile), received on 13 September 2018. The Committee requests the Government to send its comments in this regard.

Article 1 of the Convention. Grounds of discrimination. Legislation. The Committee recalls that, in its previous observation, it referred to Act No. 20609 of July 2012, establishing measures to combat discrimination, which does not include the grounds of colour, national extraction and social origin among the prohibited grounds of discrimination. However, these criteria are contained in section 2 of the Labour Code. In the same observation, the Committee noted the information on relevant case law provided by the Government, including 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 (any discrimination that is not based on the capacity or suitability of the individual) and by the Convention, and states 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 asked 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. The Committee notes that, in its report, the Government provides extensive information on court decisions on cases of discrimination that refer to section 2 of the Labour Code, including the ruling of the Supreme Court of 10 July 2015, issued in Case No. 24.386-2014, in which the Court reiterates that the list of grounds of discrimination prohibited in section 2 of the Labour Code “should not be regarded as exhaustive but, rather, as a list that specifies suspicious criteria the presence of which in the present case implies a violation of the mandate of non-discrimination at work contained in article 19(16) of the Fundamental Charter”. The Committee also takes note of Act No. 20940 modernizing the labour relations system, published on 8 September 2016, which extends the list of grounds of discrimination contained in section 2 of the Labour Code. It notes with interest that this Act adds the following grounds in relation to Article 1(1)(b) of the Convention: socioeconomic situation, language, beliefs, participation in trade union organizations, family background, personal appearance, disease or disability. While noting this information, and recalling the importance of guaranteeing that all persons have a clear legal basis for asserting their right to equality of opportunity and treatment in employment or occupation, the Committee once again requests the Government to: (i) clarify how the provisions of the Labour Code and Act No. 20609 are coordinated in practice in terms of the grounds established and the remedies available to victims of discrimination in employment and occupation; and (ii) send information on the application in practice of Act No. 20609.

Discrimination based on sex. Legislation. The Committee recalls that it 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, 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 its previous observation, the Committee noted 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 for a wife to be able to enter into a commercial partnership agreement, and asked the Government to send information on any developments relating to the adoption of the Bill. The Committee notes the Government’s indication that the amendment of the marriage regime has been included in the Gender Equity Agenda presented by the President on 23 May 2018 and that the above-mentioned Bill to amend the Civil Code and other legislation is being processed. The Committee observes that, according to the website of the House of Representatives of Chile, the Bill is going through its second constitutional procedure in the Senate. The Committee requests the Government to provide information on the passage of the Bill and to supply it with a copy of the Act once it is promulgated.

Sexual orientation. The Committee also notes with interest that Act No. 20940 of 2016 adds “sexual orientation” and “gender identity” as prohibited grounds of discrimination. The Committee requests the Government to provide information on the application of these provisions in practice.

Article 2. Conditions of work and remuneration. In its previous observation, the Committee referred to the observations made by the Federation of Unions of Supervisors Rol A and Professionals of CODELCO Chile (FESUC), which refer to: (i) workers recruited by the enterprise after 2010, the majority of whom are women, 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 employees, even outside working time. The Committee noted the Government’s reply and asked the Government to continue to provide information in this regard. The Committee notes the Government’s indication that, according to the enterprise, its pay and benefits policy is based on objective criteria, according to the operational reality of each of its divisions, their size, productivity, and the conditions of the copper market. The enterprise indicates that one of the pillars of its Corporate Policy on People Management is “systems of compensation, benefits and recognition based on merit, and job evaluation systems that safeguard equality of opportunity, internal equity and external competitiveness” (pillar 6), and that remuneration is “agreed” by the primary unions that form FESUC and the various divisions of the enterprise. With respect to the situation of women workers in particular, the enterprise indicates that it has established a policy to close persistent gender gaps in the workplace and is making efforts to increase women’s participation in the world of work and to promote the value of women’s contribution to the productivity of enterprises. As a result of these efforts, the enterprise has four workplaces that have earned the Equal-Conciliation Seal (Sello Iguala-Conciliación) awarded by Chile’s National Service for Women and Gender Equity. The enterprise adds that there are two industrial instruments in its divisions that are designed to ensure compliance with the policies for equality of treatment between men and women within the corporation: (i) Internal Regulations on Order, Health and Safety, which establish the right to equal pay and prescribe safeguard procedures for workers in the event of a violation; and (ii) an internal system through which workers or third parties may file complaints – which can be signed or anonymous – in the event of a violation of the legal regulations, policies, procedures, code of conduct or any other regulations applicable to the enterprise, its workers, its relations with contractors and with third parties. The enterprise reports that, at the date of issuance of the report, no discrimination-related infringements had been observed within its divisions. With regard to the enterprise’s code of conduct, the enterprise points out that no complaints have been received regarding political activities. The Committee notes that, according to the Government, all of the above demonstrates that the enterprise respects the specific and non-specific labour rights of its workers, by applying the principle of equality of treatment and respecting the political rights of those who provide services to the corporation.

Pensions. In its previous comments, the Committee referred to the observations made by various social partners, according to which the current private pensions system, which is based on a fully funded system, discriminates against women through the use of differentiated mortality scales for men and women. It also noted the adoption on 29 April 2014 of Supreme Decree No. 718 creating the Presidential Advisory Commission on the Pensions System. The Committee observed that the proposals contained in the final report of the Presidential Advisory Commission of September 2015 included 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 asked the Government to provide information on: (i) the real impact of the use of differentiated mortality scales from their introduction up to the present time on the specific amounts of the benefits received by pensioners; and (ii) 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 sex. The Committee notes the Government’s indication that the real impact of the use of differentiated mortality scales by sex cannot be assessed, as their use remains a proposed measure. Moreover, the Government reports that, on 1 July 2016, the authority responsible for monitoring pensions (Superintendencia de Pensiones (SP)) and the authority responsible for monitoring securities and insurance (Superintendencia de Valores y Seguros (SVS)) published new mortality scales, with the technical assistance of the Organisation for Economic Co-operation and Development (OECD) and following consultations with the National Institute of Statistics (INE) and the Latin American and Caribbean Demographic Centre (CELADE). The Committee observes that General Regulations SP No. 162 and SVS No. 398 of 20 November 2015, issued by the authorities responsible for monitoring pensions and securities and insurance, which establish the mortality scales published in July 2016, provide for the use of five differentiated mortality scales by sex. The Committee notes, on the other hand, that a proposal to amend the national legislation on pensions has been presented to Congress. The Committee wishes to highlight that factors, such as a labour force participation rate for women that is considerably lower than the rate for men, the use of differentiated mortality scales by sex (instead of unisex mortality scales) and the absence of provisions which allow periods during which parental responsibilities are exercised to be included in the calculation of pensions, have a negative impact on women’s pension levels, which is further aggravated in funded pension systems in which the amount of benefits depends on the contributions made by workers during their working lives. The Committee urges the Government to take the opportunity presented by the legislative reform under way to ensure that unisex mortality scales are included and otherwise guarantee the principle of equality between men and women in terms of pensions, and requests the Government to provide information on any developments in this regard.

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