Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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. In its previous comment, the Committee noted that Act No. 20940 introduced 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 an additional requirement to represent a minimum of 50 per cent of the total number of workers (section 227 of the Labour Code). The Committee noted the allegations by the General Confederation of Public and Private Sector Workers (CGPT) 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 notes that the Government has not responded to its request to reply to the CGTP’s observations and that the CGTP and the Confederation of Copper Workers (CTC) once again denounce the fact that the additional requirement that has been introduced makes the establishment of workers’ organizations difficult. The Committee once again requests the Government to provide its comments on the observations of the social partners, as well as practical information on the impact of this new requirement for the establishment of unions in enterprises with 50 or fewer workers.

Article 3. Right of organizations to organize their activities and to formulate their programmes. In its previous comments, the Committee requested the adoption of measures to amend and/or provide information on the application of the various sections of the Labour Code relating to the exercise of the right to strike:

Strike ballots. Section 350 of the Labour Code requires an absolute majority of workers represented by the union for a strike ballot (although workers are not 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 the usual place of work). While noting that the Government has not provided any information on this subject, 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 or majority are fixed at a reasonable level.  The Committee once again requests the Government to take the necessary measures in this regard and to report any developments.

Date of the commencement of a strike. In its previous comment, the Committee noted that section 350 of the Labour Code provides that the strike shall be carried out as from the fifth day of its approval. The Committee notes that, in response to its request for clarifications on the implications of this provision, the Government provides an opinion issued by the Directorate for Labour (No. 441/7 of 25 January 2017), indicating that this period is a waiting period between the strike ballot and the effective commencement of the strike, and that it may be subject to an extension of five additional days for the purpose of compulsory mediation. The Committee also notes that various social partners challenge this provision on the grounds that it imposes an excessive period of notice which limits the exercise of the right to strike.  Recalling that, although it is possible to establish a brief period for reflection or mediation, the decision on the date of the commencement of a strike should be left to the workers, the Committee requests the Government to reply to the observations of the social partners and to provide further information on the application of this provision in practice, and particularly to indicate the consequences or obligations on the union in the event that it wishes to commence a strike on a date other than the one imposed by section 350 of the Labour Code.

Resumption of work. Section 363 of the Labour Code provides that, in the event of a strike or temporary closure of the enterprise which, by reason of its nature, timing or duration, causes a serious risk to health, the environment, the supply of goods or services to the population, the national economy or national security, the respective Labour Tribunal may order the resumption of work, upon the application of one of the parties. In its previous comments, the Committee noted with interest the attribution to the judicial authorities of decisions concerning the resumption of work, and recalled that the resumption of work may only be ordered 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, such as conciliation and mediation procedures and, in the event of deadlock, arbitration machinery, which should have the confidence of the parties. The Committee notes the Government’s indication that there have so far been no legal rulings in this regard (since the entry into force of this new provision in 2017, there has only been one court application for the resumption of work which, although it was upheld by the court, was not applied in practice, as during the time given for the implementation of the order the parties agreed to end the strike). In this regard, the Government considers that the procedure requiring the application to be examined by the courts has limited the effectiveness of the provision, as applications to the courts are decided when the strike has already ended.  The Committee requests the Government to continue providing information on the application of this provision in practice, with an indication in particular of the situations concerned and the services affected by the resumption of work. It also requests the Government to reply to the observations of the social partners on this subject, and to indicate the compensatory guarantees envisaged for workers who may be affected.

Seasonal agricultural workers. In its previous comments, the Committee requested that the right to strike also be guaranteed for agricultural workers, as a category of workers with special contractual arrangements (Title II, Book I, of the Labour Code). The Committee previously noted the Government’s indications that: agricultural workers were regulated by general provisions and had the right to strike under the same terms as other workers; and only seasonal agricultural workers are not guaranteed the effective enjoyment of this right under the law. The Committee notes that the Government has not provided any information in reply to its request to ensure that these workers too can exercise the right to strike. The Committee is once again bound to recall 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 this regard.

Application of the Convention in practice. The Committee notes that the CGPT once again alleges 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 every worker member. The Committee notes that the CTC raises the same issue and indicates that it has not been resolved. The Committee once again requests the Government to provide its comments on this subject and to take any measures that are necessary to ensure that the unions are able to represent their members in judicial proceedings.

The Committee also notes that several of the observations by workers’ organizations once again indicate that the labour reform has facilitated interference by 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 the obligations imposed by law or for no longer complying with the requirements for its establishment (as substantiated by a ruling of the Labour Tribunal). In this regard, the Committee notes the Government’s indication that, between 2014 and 2018, a total of 14 applications were made by employers to the Directorate of Labour for the dissolution of unions and that, of these requests, only five would be viable under the current wording of section 297 of the Labour Code, and that it is not therefore possible to observe a considerable increase in the number of such applications.  While taking due note of this information, the Committee requests the Government to continue providing information on the effect given to this provision in practice, and particularly on the judicial procedures initiated by the Directorate for Labour through labour tribunals at the instigation of employers.

The Committee notes the observations of various social partners alleging that the system for the determination of minimum services undermines in practice the effective exercise of the right to strike: (i) they consider that bilateral involvement is not respected in the determination of minimum services, nor is there respect for the independence that must be shown by bodies making such decisions; (ii) they indicate that enterprises are allowed to submit requests for minimum services outside the time limits, in the hope of receiving a proposal for a collective measure to delay or prevent the strike and collective bargaining, and that the authorities take more time to decide on applications for minimum services than the period set out in the law (180 days), with this period being extended in practice to around 14 or 15 months; (iii) they allege a lack of legal consideration in the determination of minimum services and emphasize that in certain cases enterprises providing non essential services (for example those handling food) have succeeded in obtaining minimum services covering over 70 per cent of the personnel; and (iv) they report the introduction of new draft legislation intended to “modernize current labour institutions” which would broaden the cases in which minimum services can be established, including criteria such as the needs of living species and the provision of food, with a view to covering supermarkets and enterprises engaged in raising livestock or fish farming.  The Committee requests the Government to provide its comments in this regard, including information on any minimum services covering over 50 per cent of the personnel that have been recorded.