Forced Labour Convention, 1930 (No. 29) - Chile (Ratification: 1933)
Protocol of 2014 to the Forced Labour Convention, 1930 - Chile (Ratification: 2021)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee welcomes the ratification by Chile of the Protocol of 2014 to the Forced Labor Convention, 1930, and hopes that the Government will provide detailed information on its application, in accordance with the report form adopted by the Governing Body.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee welcomed the actions taken by the Government to introduce an action plan to combat trafficking in persons based on a comprehensive and coordinated approach, and encouraged the Government to continue taking measures for its implementation. The Committee also requested the Government to continue reinforcing the efforts made to provide adequate protection for victims and invited it to continue providing information on the prosecutions brought under section 411 quater of the Penal Code, (introduced by Act No. 20507 of 2011), which criminalizes trafficking in persons.

The Committee notes the detailed information provided by the Government in its report on the measures taken within the framework of the implementation of the four strategic axes of the action plan to combat trafficking in persons for the period 2019–2022. It notes in particular the continuation of training activities for public officials and personnel of the brigade to investigate trafficking in persons under the Chilean Police (BRITRAP), and the carrying out of awareness-raising activities among vulnerable groups and priority sectors, including Venezuelan migrants. In the area of protection, the Committee notes that the Intersectoral Protocol on assistance for victims of trafficking in persons continues to operate and that, since its creation in 2013, assistance has been provided to 229 persons (59 victims of sexual exploitation and 170 victims of labour exploitation) in the areas of health, legal assistance, migration regulation, social assistance and education. According to information from the under-secretariat for crime prevention, 59 per cent of the victims who came under the Intersectoral Protocol in 2020 had an irregular migratory status and 55 percent were women. In this regard, the Committee takes due note that under section 71 of Act No. 21325 on migration and aliens enacted on 20 April 2021 (which will enter into force once the corresponding regulations have been issued), victims of trafficking in persons who are not nationals or permanent residents in the country will have the right to submit a request for authorization of temporary residence for a minimum period of 12 months, during which time they may file criminal and civil actions and initiate proceedings to regularize their residency status.

With regard to the enforcement of criminal legislation against trafficking in persons, the Committee notes that from 2011 to 2020, 21 convictions were obtained (13 relating to trafficking for the purpose of sexual exploitation and eight for trafficking for the purpose of labour exploitation) and 34 persons were convicted. In addition, reinforcement was provided for personnel capacities and material resources available to the brigade to investigate trafficking in persons, which has three specialized units in the metropolitan region, Arica and Iquique.

The Committee encourages the Government to continue its efforts to combat trafficking in persons, and to continue to take steps to implement the action plan and evaluate its impact, as well as to strengthen the capacities of the bodies responsible for identifying and protecting victims, and investigating cases of trafficking. It requests the Government to provide information in this regard, and on investigations and legal proceedings initiated and concluded under section 411 quater of the Penal Code, indicating the number of convictions and penalties imposed. Given that, according to the statistics provided by the Government, a large number of victims of trafficking are migrant men and women in an irregular situation, the Committee requests the Government to continue to provide information on the measures taken to raise awareness, inform and protect these victims in particular, including information on the shelters made available to them and agreements signed with the countries of origin. It also requests the Government to provide information on the number of persons who have benefited from the procedure established under section 71 of Act No. 21325 on migration and aliens.

Articles 1(1) and 2(1). 1. Vulnerability of migrant workers to conditions of forced labour. The Committee notes that section 9 of Act No. 21325 on migration and aliens establishes that irregular migration does not constitute a crime. Section 13 of Act No. 21325 provides that the State shall promote respect and protection of non-national women, irrespective of their migratory status, who shall also have the right to access all institutions and mechanisms that safeguard their well-being. The Committee takes note that, in its concluding observations of 11 May 2021, the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families referred to the lack of information on steps taken to monitor the situation of women migrant domestic workers, including the more than 40 per cent who are in an irregular situation, and on complaint mechanisms (CMW/C/CHL/CO/2, para. 33). In this respect, the Committee recalls that migrant workers, in particular those in an irregular situation, are among the persons most vulnerable to conditions of labour that may amount to forced labour. The Committee takes note of the legal provisions adopted to guarantee respect of the rights of migrant workers in an irregular situation and encourages the Government to continue taking measures in this regard. To this end, the Committee requests the Government to provide information on the measures taken to detect breaches of the rights of migrant workers in an irregular situation which may result in practices that amount to forced labour, in particular in the domestic work sector.

2. Impact of the operation of the duty lawyer roster system on the free exercise of the profession of lawyer. For several years, the Committee has been referring to the recommendations formulated in 2008 by the tripartite committee set up to examine the representation made by the Colegio de Abogados de Chile on the operation of the duty lawyer roster system. In particular, the Committee referred to the need to review the overall functioning of the duty lawyer roster system to ensure that it had no adverse effects on the free exercise of the profession of lawyer, and to take the necessary measures to ensure that such a review took into account the volume of work imposed, the frequency of assignments, the financial losses incurred and the excessive nature of the sanction that is currently envisaged. In this respect, the Committee noted the decision of the Constitutional Court of 29 July 2009 (Decision No. 1254-08-INC) finding unconstitutional the unpaid nature of the legal aid provided by duty lawyers under section 595 of the Basic Code on Courts. This provision required duty lawyers to provide legal aid free of charge to persons with a low income designated by the trial judges. It also noted the Government’s efforts to resolve the weaknesses identified in the public legal aid system.

The Committee notes that, in January 2021, the under-secretariat for human rights submitted to National Congress the Bill providing for the establishment of the Bill providing for the establishment of the National Service for Access to Justice (bulletin No. 13991-07) as an institution responsible for providing legal advice to persons needing defence and not able to provide it for themselves, for which the above Service will have the necessary personnel. The Committee notes the Government’s indication that the legal initiative does not envisage the removal of the position of duty lawyers but that its implementation would have a positive impact on the number of cases which would be assigned to them. The Committee hopes that, once the legislation regulating the National Service for Access to Justice is adopted, it may have the effect of ensuring that the obligation imposed on duty lawyers to defend cases assigned to them (under sections 595 and 598 of the Basic Code on Courts, and sections 18 and 19 of Act No. 19.968 providing for the establishment of the family courts) is contained with reasonable limits of proportionality in respect of the volume of work imposed, the frequency of assignments and the financial compensation. The Committee meanwhile requests the Government to provide statistical and up-to-date information on the number of duty lawyers annually assigned to defend cases, the number of cases per lawyer and the frequency with which these are assigned, as well as information on the financial compensation granted in this regard.

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

The Committee notes the observations of the Single Central Organization of Workers of Chile (CUT-Chile), received on 3 November 2017.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted the strengthening of the legislative and institutional framework to combat trafficking in persons. It noted in particular: (i) the adoption of Act No. 20507, which criminalizes the smuggling of migrants and trafficking in persons and contains provisions on prevention and more effective prosecution; (ii) the establishment of the intersectoral committee on trafficking in persons, responsible for coordination action, plans and programmes for its prevention, repression and punishment; (iii) the adoption in December 2013 of the National Action Plan to Combat Trafficking in Persons, containing four strategic components: prevention and awareness, surveillance and prosecution of crimes, protection and assistance of victims, and interinstitutional coordination and cooperation; and (iv) the adoption of the intersectoral protocol on care for victims of trafficking. The Committee requested the Government to provide information on the implementation of the National Action Plan, the action taken by the brigade to investigate trafficking in persons (BRITRAP) and any judicial proceedings brought under section 411 quater of the Penal Code.

The Committee notes, according to the information provided by the Government in its report, that in April 2015, the intersectoral committee on trafficking in persons assessed the implementation of the National Action Plan. Based on the obstacles encountered in the implementation of each of the strategic components, the intersectoral committee examined and redefined the objectives, actions and outcome indicators of the Plan for the period 2015–18. The Committee notes the finding of the assessment that, in relation to prevention, it was considered that there was a general lack of knowledge of the crime of trafficking in persons, meaning that certain situations of trafficking might not be identified appropriately, leading to the continued violation of the rights of the victims. Another finding was the need for training for officials in the criminal justice system, as the concepts of the smuggling of persons, trafficking in migrants and irregular migration were often confused. It was also found that, despite the existence of legal remedies in the judicial system for victims to obtain compensation for the damage suffered, victims had not made use of those remedies until 2015.

In this regard, the Committee notes that the intersectoral committee on trafficking in persons has developed tools for the law enforcement authorities, such as: (i) the good practice guide for the criminal investigation of the crime of trafficking in persons; (ii) the guide on the detection and identification of victims of trafficking in persons, which defines and describes the indicators for the primary and secondary identification of victims of trafficking (July 2016); and (iii) the operational guide for intersectoral inspections relating to trafficking in persons which is intended to provide public officials, in the context of their inspection functions, with tools to promote effective and efficient criminal prosecution and suitable assistance for victims. Regional committees on trafficking in persons have also been established to give effect to the regional strategy. The Committee notes that, according to the statistical information published by the intersectoral committee, between the adoption of Act No. 20507 in 2011 and the end of 2017, there were 33 prosecutions for the crime of trafficking (23 for sexual trafficking and ten for labour trafficking), covering a total of 214 victims (57 per cent were men, 43 per cent women, and almost all of the victims were foreign nationals), 14 sentences were handed down and 20 convictions. In addition, 123 cases were covered by the intersectoral protocol on assistance to victims of trafficking and a total of 123 visas were issued for victims, mostly of Bolivian nationality. In this regard, the Committee notes the detailed information provided by the Government on the investigations carried out in 2016 and 2017 by the BRITRAP, which found evidence leading to arrest warrants being issued for the suspects.

The Committee notes the indication by CUT-Chile in its observations that trafficking in persons is a growing issue which is nevertheless still little known, invisible and difficult to quantify in real terms. CUT-Chile recognizes that Act No. 20507 constitutes progress from the viewpoint of criminal prosecution, but is limited to one aspect of the problem, leaving aside what is really important, namely assistance to victims and their reintegration. CUT-Chile considers that the Government needs to strengthen the investigation and inspection services with a view to the elimination of all forms of forced labour. It also considers it necessary to establish compensation funds for victims.

The Committee welcomes the action taken by the Government to formulate the updated National Action Plan to Combat Trafficking in Persons, which adopts an integrated and coordinated approach. The Committee encourages the Government to continue taking the necessary measures to give effect to the four strategic components of the Plan: prevention, prosecution, protection and assistance for victims, and interinstitutional coordination and cooperation. The Committee requests the Government to provide detailed information in this regard, and information on the monitoring and follow-up of the implementation of the Plan by the intersectoral committee on trafficking in persons. While noting that the identification of cases of trafficking and the protection of victims continue to be important objectives, the Committee requests the Government to continue reinforcing the efforts made to provide adequate protection for victims of trafficking and to ensure that all victims are in a position to assert their rights. The Committee requests the Government to provide information on the measures adopted in this regard. Finally, the Committee requests the Government to continue providing information on the operations of the BRITRAP, the prosecutions brought under section 411 quater of the Penal Code, and the penalties handed down.

Articles 1(1) and 2(1). Impact of the operation of the duty lawyer roster system on the free exercise of the profession of lawyer. In its previous comments, the Committee referred to the report adopted in November 2008 by the tripartite committee set up to examine the representation made by the Colegio de Abogados de Chile on the overall operation of the duty lawyer roster system and its impact on the free exercise of the profession of lawyer. The Committee noted that section 595 of the Basic Code on Courts, which required duty lawyers to provide legal aid “free of charge” had been repealed (ruling No. 1254 08 INC of the Constitutional Court). It also noted the measures taken to ensure legal aid for persons with low incomes, especially through the Defensoría Penal and the Defensoría Laboral. The Committee encouraged the Government to continue taking measures to enable the system of duty lawyers to operate within reasonable limits of proportionality with respect to the volume and frequency of the work assigned to lawyers and to ensure that duty lawyers receive financial compensation for the legal aid that they provide.

The Committee notes the Government’s indication that every effort is being made to prepare draft legislation to resolve the weaknesses identified in the current public legal aid system. To this effect, it has engaged in participatory work with the representatives of the four Legal Aid Corporations which constitute the public legal aid system with a view to improving the quality of the legal services provided to the vulnerable population of the country. The Government indicates that the corporations have made progress in making their services more professional and in the provision of free services in labour and civil issues and in judicial family law cases.

The Committee notes this information and requests the Government to continue providing information on the adoption of the Act regulating the public legal aid system. Please provide information on the impact of the adoption of the Act on the volume of work assigned to duty lawyers. The Committee once again requests the Government to provide information on the financial compensation provided to duty lawyers for the legal aid that they provide.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted the adoption of Act No. 20.507 of 8 April 2011 introducing into the Penal Code a new provision, section 411 quater, which criminalizes the smuggling of migrants and the trafficking of persons and lays down rules for their prevention and effective punishment. It asked the Government to provide information on the measures taken to apply the various parts of the Act, and on the extent of the trafficking of persons in Chile. The Committees notes with regret that in its last report the Government provides no information on these matters. It notes, however, from information available on the websites of various public authorities, that a set of measures has been introduced to combat the trafficking in persons, and particularly:

• -the establishment of an intersectoral committee on trafficking in persons, responsible for coordinating the actions, plans and programmes implemented by the various institutions involved in the prevention and punishment of trafficking in persons:
• -the adoption in December 2013 of an Action Plan to Combat Trafficking in Persons, which is the first planning tool to cover all measures to prevent, prosecute and punish trafficking and to protect the victims and provide them with effective assistance and redress. The Action Plan consists of four strategic components: prevention and awareness raising; surveillance and prosecution of offences; protection and assistance for victims; and cooperation and coordination between institutions. It provides for an annual assessment of the relevancy and effectiveness of the measures taken and the objectives set, and the regular updating of the actions pertaining to each of the strategic components;
• -the establishment, in October 2012, of a trafficking in persons investigation brigade (BRITRAP) within the Chilean criminal police force;
• -the intersectoral protocol to assist the victims of trafficking, which provides for coordination between the institutions that provide assistance of various kinds to trafficking victims so that they can effectively assert their right to care, protection, redress and the prevention of re-victimization.

The Committee requests the Government to provide information in its next report on the implementation of the measures provided for under the four strategic components of the Action Plan to combat trafficking in persons and on any assessments already conducted. It would also be grateful if the Government would specify the action undertaken by the investigation brigade to combat trafficking in persons and by the competent public authorities to ensure that the victims of trafficking, for sexual exploitation and labour exploitation alike, are identified, protected and able to assert their rights. Please indicate any obstacles encountered by these authorities and the measures envisaged to overcome them. Lastly, the Committee would be grateful if the Government would specify whether any judicial proceedings have been brought under section 411 quater of the Penal Code and whether any sentences have been passed.

Follow-up to the representation submitted under article 24 of the ILO Constitution. In its previous comments, the Committee referred to the report of the tripartite committee set up to examine the representation submitted by the Colegio de Abogados de Chile alleging non-observance of Convention No. 29 by the Government of Chile, which was adopted in November 2008 by the Governing Body. The tripartite committee asked the Government to review the overall functioning of the “duty lawyer roster system” to ensure that it had no adverse effects on the free exercise of the profession of lawyer. The Committee noted the improvements and changes made in order to ensure legal aid for persons with low incomes in their dealings with the criminal and labour courts, in particular through the Defensoría Penal and the Defensoría Laboral, and the decision of the Constitutional Court finding unconstitutional the unpaid nature of the legal aid provided by duty lawyers under section 595 of the Basic Code on Courts (Decision No. 1254-08-INC).

The Committee notes in this connection that the Government confirms that following the Constitutional Court’s decision and its publication in the Official Journal of 1 August 2009, section 595 of the Basic Code on Courts has been repealed. With regard to the Bill to improve the functioning of legal aid associations, particularly in the area of social affairs, the Government states that progress on the Bill on a national legal aid service is a priority of the Ministry of Justice. The Committee requests the Government to pursue its efforts to enhance the national legal aid service and to pursue to continue to provide information on the legal aid reform, particularly in the area of family affairs. It hopes that the reform will contribute further to ensuring that the system of duty lawyers operates within reasonable limits of proportionality with respect to the volume and frequency of work assigned to them. The Committee also requests the Government to indicate the measures taken to ensure that duty lawyers receive financial compensation for the legal aid that they provide.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Follow-up to the representation submitted under article 24 of the ILO Constitution. The Committee recalls that in November 2008 the Governing Body had adopted the report of the tripartite committee set up to examine the representation submitted by the Colegio de Abogados de Chile alleging non observance of Convention No. 29 by the Government of Chile. The Committee requested the Government to provide information on the measures taken to give effect to its recommendations in its reports on the application of the Convention. It particularly asked the Government to review the overall functioning of the “duty lawyer roster system” in order to ensure that the system did not prejudice the free exercise of the profession of lawyer; and to take the necessary measures to ensure that such a review took into account the volume of work imposed, the frequency of assignments, the financial losses incurred and the excessive nature of the sanction that is currently envisaged.

In its report, the Government provides information on reforms that have been introduced to legal proceedings applying to matters under criminal, labour and family law – reforms that have had an impact on the amount of work carried out by duty lawyers. The Government draws particular attention to the institutionalization of low-income persons appearing before the criminal and labour courts by means of the “Defensoria Penal” and the “Defensoria Laboral”. As for matters under civil and family law, the Government states that the defence of low-income persons continues to be carried out by “legal aid corporations” and, alternatively by a roster of duty lawyers. In this context, the Government points out that a bill is being examined with a view to improving the functioning of legal aid corporations, and that, in the case of family matters, Act No. 20.286 of 2008 has introduced changes to family court proceedings, which should result in less recourse to duty lawyers. Finally, the Government states that on 29 July 2009, the Constitutional Court ruled that the unpaid nature of legal aid provided by duty lawyers was unconstitutional.

The Committee notes all the improvements and changes made to the various systems designed to guarantee legal aid to persons with a low income. The Committee points out that, as the Governing Body requested when examining the representation made by the Colegio de Abogados de Chile, these changes might help to ensure that this system of duty lawyers operates within the reasonable limits of proportionality with respect to the volume and frequency of work imposed on these lawyers. In this respect, the Committee notes with interest the ruling of the Constitutional Court, which considered the unpaid nature of this legal aid to be unconstitutional. Consequently, the Committee requests the Government to specify in its next report the measures that have been taken to implement this Constitutional Court ruling and to indicate whether it has an impact on all persons (“erga omnes” effect) or only on those involved in the dispute. It also asks what measures have been taken to ensure financial compensation to duty lawyers for the cases to which they have been assigned. The Committee further requests the Government to provide information on the follow up to the Bill designed to improve the functioning of legal aid corporations and on the repercussions of these improvements on the number of cases handed over to duty lawyers.

Articles 1(1), 2(1) and 25 of the Convention Trafficking of persons. The Committee notes the adoption of Act No. 20.507 of 8 April 2011, which spells out the components constituting the major offenses of the illegal trafficking of migrants and trafficking of persons, and establishes standards with a view to preventing and effectively curbing these offenses. The Committee notes with interest that this Act adds a new section 411quater to the Penal Code, which makes the trafficking of persons a criminal offense and makes anyone committing this offence liable to a term of imprisonment ranging from three to five years. The Act also stipulates that the Public Prosecutor shall adopt all measures necessary to guarantee the protection of the victims of trafficking throughout the criminal proceedings, particularly taking account of the fact that they are in a vulnerable situation. Furthermore, foreign victims who do not have a permanent residence permit may apply for a temporary residence permit for a minimum period of six months, during which time they may decide whether to instigate legal proceedings or take steps to give them legal status in the country.

The Committee requests the Government to provide information on the extent of trafficking of persons in Chile and on the application of this new legislation in practice. Please, also provide information on the difficulties encountered by the public authorities to identify the victims and combat the trafficking in persons and, where appropriate, on the measures taken to overcome them; the measures taken by the Public Prosecutor to guarantee the protection of the victims throughout the legal proceedings; and the number of victims who have received a temporary residence permit and the number of those who have accepted to be involved in legal proceedings. Finally, the Committee requests the Government to send information on legal rulings handed down on the basis of the new section 411quater of the Penal Code.

Article 2(2)(c). Prison labour in prisons operated under concession. The Committee notes that in reply to its previous direct request, the Government confirms that the work of prisoners for a private enterprise in prisons, whether or not these prisons are operating under concession, is carried out under a contract subject to the labour legislation in force. As regards the prisons operating under concession, the Government specifies that it is clearly stipulated in the contract documents concerning the invitation to tender that prisoners working for private enterprises, including those operating under concession, must be entitled to a contract subject to the general labour legislation provisions applying on the free marketplace.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2, paragraph 2(c), of the Convention. Prison labour in prisons operated under concession. In its previous direct request, the Committee requested the Government to provide information on the work programme in prisons already operating under concession, particularly on the criteria which make it possible to consider that the work of prisoners in such prisons may be compatible with the explicit provision of the Convention that work exacted from any person as a consequence of a conviction in a court of law is not defined as forced labour provided that the work is carried out under the supervision and control of a public authority and that the person is not hired to or placed at the disposal of private individuals, companies or associations.

Free consent

As regards the matter of free consent, the Committee previously requested the Government to indicate how it is ensured in both law and practice that prisoners give their consent freely for work that they perform in prisons operated under concession and whether any refusal to work is taken into account in assessing the prisoner’s conduct.

The Committee notes that, under section 32 of the Penal Code, persons sentenced to the penalty of “presidio” shall be required to carry out work, while those sentenced to a penalty of “reclusión” or “prisión” shall not be required to perform work of any kind. It also notes that, under Act No. 19856 of 2003 on the system of social reintegration, a sentence may be reduced based on proven outstanding conduct during that sentence and that work is one of the mandatory criteria used to assess a prisoner’s conduct (section 7(b) of Act No. 19856 of 2003). The Committee also notes the Government’s indications concerning the assessment of the work performance of prisoners carried out by the operator. The Committee notes that the possibility of reducing a sentence, as provided for under the above Act, is dependent on consent to work.

The Committee requests the Government to indicate the authority responsible for assessing prisoners’ conduct for the purpose of reducing their sentences and the measures taken or envisaged to ensure that a refusal to work for a private enterprise does not constitute a threat of the loss of the advantage provided for under the above Act on the reduction of prison sentences.

Conditions approximating those of a free employment relationship

With regard to working conditions approximating those of a free employment relationship, the Committee notes with interest that, according to the Manual for linking private enterprise to the prison labour programme, the remuneration of prisoners working for private enterprises established on prison complexes is subject to the labour legislation in force. Their conditions of occupational safety and health and of social security are also subject to the labour legislation.

The Committee requests the Government to indicate whether the labour legislation is also applied to the remuneration and other working conditions in prisons operated under concession.

Representation submitted under article 24 of the ILO Constitution

The Committee notes that at its 303rd Session (November 2008), the Governing Body adopted the report of the tripartite committee set up to examine the representation submitted by the Colegio De Abogados de Chile alleging non‑observance by the Government of Chile of Convention No. 29. The Committee requested the Government to provide information on the measures taken to give effect to its recommendations in its reports on the application of the Convention, namely:

–           to review the functioning of the duty lawyer roster system in order to ensure that the system does not prejudice the free exercise of the profession of lawyer; and

–           to take the necessary measures to ensure that such a review takes into account the volume of work imposed, the frequency of assignments, the financial losses incurred and the excessive nature of the sanction that is currently envisaged.

The Committee requests the Government to provide information on the effect given to these recommendations.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 2(2)(c) of the Convention. Prison labour in prisons operated under concession. In its previous direct request, the Committee noted that the provisions of the regulations on prisons (Judicial Decree No. 518/98) state that prisoners shall have the right to perform individual work which brings them some type of economic benefit (section 61) and that work activities undertaken by prisoners in the context of agreements implemented by third parties shall be governed by the common labour legislation and, irrespective of the applicable norms, the respective agreements shall provide that the remuneration paid to prisoners by contracting enterprises or third parties may not be lower than the minimum wage determined annually by the competent authority for workers who are not detained; and that the insurance contributions shall also be made to the institution or institutions of the corresponding insurance scheme (section 64).

The Committee notes that in the context of the concession programme relating to prison infrastructure, prisons operated under concession (prisiones concesionadas) have been set up. The implementation of the labour subprogramme, which is the responsibility of the operator, must promote and manage the integration of prisoners in formal paid work inside the prison, whether in the form of tasks that are necessary for the working of the prison or jobs with productive enterprises installed on the premises of the operator or of third parties subcontracted by him.

The Committee recalls, with regard to the situation of prisoners who work in privatized prisons or for private enterprises, that it is only when the necessary safeguards exist to ensure that prisoners offer themselves voluntarily without being subjected to pressure or threats that such work falls outside the scope of the Convention. The Committee has therefore considered that in situations of captivity it is necessary to obtain the formal written consent of the prisoner. The Committee also recalls that conditions approximating to a free labour relationship are the most reliable indicator of the voluntariness of labour.

The Committee would be grateful if the Government would supply information on the work programme in prisons already operating under concession and especially on the criteria which make it possible to consider that the work of prisoners in such prisons may be compatible with the explicit provision of the Convention that work exacted from any person as a consequence of a conviction in a court of law is not defined as forced labour provided that the work is carried out under the supervision and control of a public authority and that the person is not hired or placed at the disposal of private individuals, companies or associations.

As regards the question of consent, the Committee requests the Government to indicate how it is ensured in law and in practice that prisoners give their consent freely for work that they perform in prisons operated under concession and whether any refusal to work is taken into account in assessing the prisoner’s conduct.

As regards conditions approximating to a free labour relationship, the Committee requests the Government to provide information on conditions of work, especially with regard to remuneration received by prisoners who are currently working in prisons operated under concession, and also on conditions of occupational safety and health and of social security.

The Committee also requests the Government to send any information which evaluates the working of prisons operated under concession.

Representation made pursuant to article 24 of the ILO Constitution. The Committee notes that the Governing Body, at its 299th Session (June 2007), declared as admissible the representation submitted by the Chilean Lawyers’ Association alleging non-observance of the Forced Labour Convention, 1930 (No. 29), by the Government of Chile. The representation will be examined in the near future.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

In its previous comments, the Committee has referred to sections 43 and 44 of Decree No. 150 of 1981, which provide for the loss of entitlement to unemployment benefit if the unemployed person refuses to perform types of work assigned by the municipal authorities, even where the unemployed person has paid contributions for the 52 weeks which give entitlement to the benefit.

In its reports, the Government has continued to indicate that these provisions have never been applied. In its latest report, it refers to the information provided by the Sub-Secretariat for Regional and Administrative Development of the Ministry of the Interior according to which "the requirement to perform assistance work assigned by the respective municipal authority, in practice and according to information gathered by the Sub-Secretariat, has not been given effect by municipal authorities".

The Committee notes the information contained in the Government’s report that the Superintendent of Social Security has issued a favourable opinion for the amendment of Decree No. 150 of 1981 in the following terms: "in accordance with the objectives and principles of the social security system, unemployment benefit must not be conditional on the beneficiary placing her or his labour capacity at the disposal of the mayor, with the sole requirements set forth concerning the cause of unemployment and the period of insurance coverage and contributions".

The Committee hopes that the Government will take the necessary measures to amend Decree No. 150 so as to ensure that the positive law corresponds to the practice which, according to the Government, already exists.

The Committee notes the adoption of Act No. 19.728 establishing an unemployment insurance scheme which will operate in parallel with the current single system of unemployment benefits governed by Legislative Decree No. 150 of 1981, which will continue to operate for workers engaged prior to 1 October 2002 who do not opt for coverage by the new insurance scheme.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the detailed information provided by the Government in reply to its general observation on the hiring of prison labour by private enterprises.

The Committee notes with interest the provisions of the Regulations respecting penitentiaries, Judicial Decree No. 518/98, which provide that detainees shall have the right to perform work individually or in groups, which brings them some type of economic benefit to cover the costs of their family and create an individual savings fund for their release (section 61) and that work activities undertaken by detainees may consist of work for their own account or subordinate work in the context of productive or training activities which are carried out within penitentiaries in the context of projects agreed upon by third parties with the Prison Administration (section 63).

The Committee also notes with interest the provisions of section 64, according to which the work activities carried out by detainees in the context of agreements implemented by third parties shall be governed by the common labour legislation and, in any event, irrespective of the applicable norms, it shall be provided in the respective concluded agreements, that the remuneration paid to detainees by enterprises or third parties covered by the contract may not be lower than the minimum wage determined annually by the competent authority for workers who are not detained; and that the insurance contributions shall also be made to the institution or institutions of the corresponding insurance scheme.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request.

Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention.  1.  The Committee referred to sections 43 and 44 of Decree No. 150 of 1981, which contained certain specific conditions with respect to entitlement to unemployment benefit. Section 43 provided that benefit would not be paid if the unemployed person refused to perform certain types of work. The Committee notes that the Government reiterates in its report that this requirement has not been imposed in practice. The Committee also notes the statement that the amendment of the Decree is under examination in the framework of measures for the approval of Convention No. 105, that a Bill has been formulated and that it is the subject of consultations with the various authorities. The Committee notes the Government’s statement that information will be supplied on the decisions taken by the authorities in this respect.

2.  The Committee commented previously on provisions relating to the termination of service of members of the armed forces. It notes that the Organic Act respecting the armed forces, No. 18.948 of 1990, recognizes resignation in section 58 and that the new conditions of service of members of the armed forces, approved by Legislative Decree No. 1 of 27 August 1997 establishes, in section 249, the conditions under which a resignation may be deferred. The Committee requests the Government to provide information on the provisions applicable to resignation contained in the supplementary regulations and to provide a copy of them.

The Committee requests the Government to provide information on the current situation with regard to the requirement of several years’ service in respect of study courses abroad and certain further training courses.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's reports.

Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. 1. The Committee referred to sections 43 and 44 of Decree No. 150 of 1981, which contained certain specific conditions with respect to entitlement to unemployment benefit. Section 43 provided that benefit would not be paid if the unemployed person refused to perform certain types of work. The Committee notes that the Government reiterates in its report that this requirement has not been imposed in practice. The Committee also notes the statement that the amendment of the Decree is under examination in the framework of measures for the approval of Convention No. 105, that a Bill has been formulated and that it is the subject of consultations with the various authorities. The Committee notes the Government's statement that information will be supplied on the decisions taken by the authorities in this respect.

2. The Committee commented previously on provisions relating to the termination of service of members of the armed forces. It notes that the Organic Act respecting the armed forces, No. 18.948 of 1990, recognizes resignation in section 58 and that the new conditions of service of members of the armed forces, approved by Legislative Decree No. 1 of 27 August 1997 establishes, in section 249, the conditions under which a resignation may be deferred. The Committee requests the Government to provide information on the provisions applicable to resignation contained in the supplementary regulations and to provide a copy of them.

The Committee requests the Government to provide information on the current situation with regard to the requirement of several years' service in respect of study courses abroad and certain further training courses.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. The Committee previously commented on certain provisions of the Penal Code relating to forced or compulsory labour in the event of vagrancy (sections 305 and 306). It notes with satisfaction that Act No. 19.567 of 22 June 1998 repeals paragraph 13 on vagrancy and mendacity, of Title VI, Book II, of the Penal Code, as well as sections 305 to 312 of the same Title.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

1. For a number of years the Committee has been referring to the conditions imposed by Legislative Decree No. 150 of 1981, under which (section 44(d)) the right to unemployment benefit is lost if the unemployed person refuses to carry out the relief work for the community provided for by section 43 of the Decree. The right to the benefit is subject to the payment of contributions for 52 weeks or 12 months over the two years prior to the date of the termination of employment.

On several occasions, the Committee has observed that the loss of the right to benefit under these conditions is equivalent to a penalty within the meaning of the Convention and it requested the Government to take the necessary measures to ensure compliance with the Convention in this respect. In its last report, the Government stated that workers who have lost their job for reasons outside their control are entitled to the benefit without having to comply with the requirements of sections 43 and 44 of the above Decree and that these provisions have never been applied. In its previous report, the Government stated that it would consider the desirability of an explicit waiver to the above provisions, which were not given effect in practice.

The Committee has noted that in the general report supplied in December 1994, with regard to the application of the Unemployment Convention, 1919 (No. 2), the Government stated that unemployment benefit is provided in accordance with the provisions of Legislative Decree No. 150 of 1981.

The Committee considers it necessary to emphasize the advantage in terms of clarifying the legal situation of repealing sections 43 and 44 of Decree No. 150 which, according to the Government, continues to be applied.

The Committee hopes that the Government will be able to indicate in its next report that the above provisions have been repealed, thereby ensuring compliance with the Convention on this point.

2. In its previous comments, the Committee referred to the provisions relating to termination of the professional career of members of the armed forces laid down in Legislative Decree No. 1 of 1968 and in the Organic Act respecting the armed forces. In its previous direct request, the Committee requested the Government to supply information on the conditions under which resignations tendered by members of the armed forces must be accepted (section 58 of the Organic Act respecting the armed forces).

The Committee has noted that Decree No. 204, issuing supplementary regulations under Legislative Decree No. 1, provides in section 553 that staff may be retained for up to five years from their return to the national territory, completion of a course or the period during which an individual is needed for a specific function in the case of members of the armed forces who have studied abroad for more than nine months, followed specialization courses in the country of at least one year's duration or acquired qualifications as a polytechnic military engineering or in a specialization related to the navy or the air force. Once this period has elapsed, the corresponding authority has to accept the resignation.

The Committee has noted the lack of proportionality between the duration of the training and the period for which members of the armed forces can be retained, and requested the Government to indicate whether the above regulations provide for the possibility of the proportional reimbursement of the training received as a means of terminating the service relationship.

3. In previous comments, the Committee referred to sections 305 and 306 of the Penal Code, under which "all persons who have no fixed address or means of subsistence, who do not habitually practice any lawful profession, job or occupation and who have the capacity to work are vagrants" (section 305). Under section 306, vagrants are liable to minimum sentences of ordinary imprisonment and are placed under the supervision of the authorities.

The Committee has noted with interest that Title I and sections 61, 64, 65 and 67 of Act No. 11625 on anti-social situations and security measures have been repealed by Act No. 19313 of July 1994 and it requests the Government to inform it of the measures which have been taken or are envisaged to repeal or amend sections 305 and 306 of the Penal Code so as to ensure that the only persons who are liable to a penalty are those who, in addition to refusing to exercise a profession or job, commit acts which disturb the law and order.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. For a number of years the Committee has been referring to the conditions imposed by Legislative Decree No. 150 of 1981, under which (section 44(d)) the right to unemployment benefit is lost if the unemployed person refuses to carry out the relief work for the community provided for by section 43 of the Decree. The right to the benefit is subject to the payment of contributions for 52 weeks or 12 months over the two years prior to the date of the termination of employment.

On several occasions, the Committee has observed that the loss of the right to benefit under these conditions is equivalent to a penalty within the meaning of the Convention and it requested the Government to take the necessary measures to ensure compliance with the Convention in this respect. In its last report, the Government stated that workers who have lost their job for reasons outside their control are entitled to the benefit without having to comply with the requirements of sections 43 and 44 of the above Decree and that these provisions have never been applied. In its previous report, the Government stated that it would consider the desirability of an explicit waiver to the above provisions, which were not given effect in practice.

The Committee notes that in the general report supplied in December 1994, with regard to the application of the Unemployment Convention, 1919 (No. 2), the Government stated that unemployment benefit is provided in accordance with the provisions of Legislative Decree No. 150 of 1981.

The Committee considers it necessary to emphasize the advantage in terms of clarifying the legal situation of repealing sections 43 and 44 of Decree No. 150 which, according to the Government, continues to be applied.

The Committee hopes that the Government will be able to indicate in its next report that the above provisions have been repealed, thereby ensuring compliance with the Convention on this point.

2. In its previous comments, the Committee referred to the provisions relating to termination of the professional career of members of the armed forces laid down in Legislative Decree No. 1 of 1968 and in the Organic Act respecting the armed forces. In its previous direct request, the Committee requested the Government to supply information on the conditions under which resignations tendered by members of the armed forces must be accepted (section 58 of the Organic Act respecting the armed forces).

The Committee notes that Decree No. 204, issuing supplementary regulations under Legislative Decree No. 1, provides in section 553 that staff may be retained for up to five years from their return to the national territory, completion of a course or the period during which an individual is needed for a specific function in the case of members of the armed forces who have studied abroad for more than nine months, followed specialization courses in the country of at least one year's duration or acquired qualifications as a polytechnic military engineering or in a specialization related to the navy or the air force. Once this period has elapsed, the corresponding authority has to accept the resignation.

The Committee notes the lack of proportionality between the duration of the training and the period for which members of the armed forces can be retained, and requests the Government to indicate whether the above regulations provide for the possibility of the proportional reimbursement of the training received as a means of terminating the service relationship.

3. In previous comments, the Committee has referred to sections 305 and 306 of the Penal Code, under which "all persons who have no fixed address or means of subsistence, who do not habitually practice any lawful profession, job or occupation and who have the capacity to work are vagrants" (section 305). Under section 306, vagrants are liable to minimum sentences of ordinary imprisonment and are placed under the supervision of the authorities.

The Committee notes with interest that Title I and section 61, 64, 65 and 67 of Act No. 11625 on anti-social situations and security measures have been repealed by Act No. 19313 of July 1994 and it requests the Government to inform it of the measures which have been taken or are envisaged to repeal or amend sections 305 and 306 of the Penal Code so as to ensure that the only persons who are liable to a penalty are those who, in addition to refusing to exercise a profession or job, commit acts which disturb the law and order.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

1. In previous comments, the Committee has referred to the conditions imposed by Legislative Decree No. 150 of 17 August 1981 governing entitlement to unemployment benefit (sections 43, 44(d), 46, 62 and 63(e)).

Under the above Legislative Decree the right to this benefit for workers who have lost their employment for reasons beyond their own control is made conditional both on the payment of contributions for 52 weeks or 12 months during the two years preceding the date of loss of employment (section 43(b)) and on the inscription of the unemployed persons in the register of unemployed persons that must be kept by every insurance institution (section 43(c)) and also in the register of unemployed persons that must be kept by every municipality with a view to their assignment to relief works for the community (section 43(d)). Under section 44(d) the right to unemployment benefit is lost if the unemployed person refuses to carry out the relief work for the community provided for by section 43(d).

The Committee observed that the loss of the right to benefit as a result of the unemployed person's refusal to carry out the relief work assigned by the municipality was equivalent to a penalty within the meaning of the Convention; it asked the Government to revise the legislation in question in the light of the Convention, and to take the necessary measures to ensure compliance with the Convention in that respect.

The Committee noted that in its report the Government stated that it would consider the desirability of an express waiver of Legislative Decree No. 150 of 1981. It further explained that the rule in question was still in force but was not applied in practice.

The Committee asks the Government to take the necessary measures to bring the national law into formal conformity with the Convention through an express waiver of Legislative Decree No. 150 of 17 August 1981 so that positive law may reflect what the Government describes as existing practice.

2. In its previous direct request the Committee referred to the provisions relating to termination of the professional career of members of the armed forces laid down in Legislative Decree No. 1 of 1968 entitled "Conditions of Service of Members of the Armed Forces".

The Committee notes (having regard to the amendments introduced by Act No. 18948 of 22 February 1990) that the provisions concerning termination of the professional career (sections 52 to 60 of Act No. 18948) include the procedures of temporary or permanent retirement and resignation. The conditions for permanent retirement are, in addition to sickness and disciplinary measures, a voluntary petition lodged after the completion of 30 years of service qualifying for retirement. Resignation (section 58) gives rise, when accepted, to temporary retirement on pension.

The Committee takes note of the Government's statement in its report that personnel entering the armed forces voluntarily accept the regulations stated above and that consequently their resignation, like resignation under civil law (Act No. 18834), must be accepted beforehand by the authority (Act No. 18948) and that, for that to happen, all the conditions qualifying the person concerned for retirement must be met.

The Committee draws the Government's attention to the fact that provisions which have the effect of converting a contractual relationship based on agreement between the parties into a service imposed by law are incompatible with the Convention and that, with a view to ensuring compliance with the Convention, it is necessary to secure to the personnel of the armed forces freedom to resign from their employment on their own initiative within a reasonable period, either at specified intervals or by giving notice.

The Committee requests the Government to inform it of the conditions qualifying an applicant for the acceptance of his resignation and of the time-limits set for the authority responsible for taking the decision concerning such resignation.

3. In previous comments the Committee referred to sections 305 and 306 of the Penal Code under of which "all persons who have no fixed address or means of subsistence, who do not habitually practise any lawful profession, job or occupation and who have the capacity to work are vagrants" (section 305). Under section 306, vagrants are liable to sentences of ordinary imprisonment in its mildest form and are placed under the supervision of the authorities.

The Committee takes note of the information given by the Government in its report to the effect that the offence of vagrancy needs to be maintained in order to assist in bringing crime under better control and as an aid in preventing many offences.

The Committee would refer to paragraphs 45 to 48 of its General Survey of 1979 on the Abolition of Forced Labour, in which it stated that provisions on vagrancy that defined it so extensively as to become a means of direct or indirect compulsion to work should be amended so that only persons who, in addition to habitually refusing to work and being without means of subsistence, disturbed law and order, were liable to a penalty.

The Committee asks the Government to examine sections 305 and 306 of the Penal Code and to supply information concerning the measures taken or contemplated to ensure compliance with the Convention on this point.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. In earlier comments, the Committee has referred to the conditions laid down by Legislative Decree No. 150 of 17 August 1981 governing entitlement to unemployment benefit (sections 43, 44(d), 46, 62 and 63(e)).

Under the above Legislative Decree the right to this benefit for workers who have lost their employment for reasons beyond their own control is made conditional both on the payment of contributions for 52 weeks or 12 months during the two years preceeding the date of loss of employment (section 43(b)), and on the inscription of the unemployed persons on the register of unemployed that must be kept by every insurance institution (section 43(c)) and also on the register of unemployed persons that must be kept by every municipality with a view to their assignment to relief works for the community (section 43(d)). Under section 44(d) the right to unemployment benefit is lost if the unemployed person refuses to carry out the relief work for the community provided for by section 43(d).

In its report, the Government states that community assistance work is assigned to those on the register of the unemployed provided that they accept the work voluntarily.

The Committee notes, nevertheless, that the current wording of sections 43(d) and 44(d) does not set out the voluntary nature of acceptance and, furthermore, refusal to perform such work results in loss of entitlement to the benefit, which is equivalent to a penalty in the sense of the Convention (paragraph 21 of the 1979 General Survey on the Abolition of Forced Labour).

The Committee requests the Government to take the necessary measures to establish in legislation the voluntary nature of the work set out in sections 43(d) and 44(d) of Legislative Decree No. 150 of 1981 by specifying that refusal to perform assistance work will not result in the loss of entitlement to the benefit and it requests it to supply information on the progress achieved to this effect.

2. Freedom of workers in the service of the State to leave their employment. In previous comments, the Committee requested the Government to provide information on the provisions governing the situation of public servants not covered by the Administrative Law (Legislative Decree No. 338 of 1960), including career members of the armed forces.

The Committee notes the adoption of the new Administrative Law (Act No. 18834 of 15 September 1989) which repeals the previous Administrative Law (Legislative Decree 338 of 1960).

The Committee notes that by virtue of section 1 of the Administrative Law that is in practice, the exceptions laid down in section 18(2) of Act No. 18575 are excluded from its scope: these include the Audit Office of the Republic, the Central Bank, the armed forces, the forces of order and public safety, municipalities and public enterprises set up by law, which will be governed by their respective legislation.

The Committee noted the amended, co-ordinated and systemised text of Legislative Decree No. 1 of 1968, the "Conditions of Service of Members of the Armed Forces", issued by Supreme Decree No. 148 of the Ministry of National Defence on 1 December 1986, and in particular sections 166 and 167, which lay down the conditions for the retirement of officers and civilian employees.

The Committee observed that the only possibility of voluntary termination of service envisaged in the Conditions of Service is the possibility for officers other than superior officers and for members of the ranks and seafarers to leave voluntarily after a period of service of 30 years which count for retirement (sections 166(b) and 169(g)).

The Committee also referred to section 174 of the Conditions of Service, under which renunciation of employment is to be considered as temporary retirement without pension (persons who have retired temporarily can be called back to serve if the authority considers this necessary, section 156). Furthermore, acceptance of retirement, when granted, only comes into effect from the date on which the order or decision accepting retirement is issued, unless, at the request of the person concerned, the authority indicates that it has been determined otherwise (section 174(2)).

The Committee also noted that the Supplementary Regulations establish the reasons for which resignation may be rejected and the maximum period for which such a situation may be maintained (section 174(3)).

The Committee notes the Government's indications that the retirement of military personnel can be deferred on grounds of acquired personal privileges, security and good service. The Government adds that persons entering the armed forces voluntarily accept the regulations that make it possible to defer retirement.

The Committee wishes to refer to paragraph 72 of the 1979 General Survey on the Abolition of Forced Labour, in which it points out that the provisions relating to compulsory military service do not apply to career military service and may not be invoked to deprive persons who have voluntarily entered into an engagement of the right to leave the service in peacetime within a reasonable period, either at specified intervals or through previous notice.

The Committee requests the Government to examine the provisions of the Conditions of Service of Members of the Armed Forces relating to termination of their career in the light of the Convention, to ensure that workers in the service of the State are free to leave their employment at their own initiative, and it requests it to indicate in its next report the measures that have been taken or are envisaged to this effect.

The Committee requests the Government to supply a copy of the Supplementary Regulations referred to in section 174(3) of the Conditions of Service.

3. In its previous direct request, the Committee referred to section 1(1) of Act No. 11625 of 1954 respecting anti-social situations and security measures.

The Committee notes, from the Government's indications in its report, that the coming into force of the above provision was subject to the adoption of a Decree (section 67) which was not issued, and that the provision therefore never came into force.

The Committee notes that by virtue of section 67 above, the coming into force of section 61 of the Act to repeal sections 305 and 306 of the Penal Code respecting vagrants and beggars is also subject to the adoption of a decree and that these sections therefore remain in force.

The Committee refers to section 305 of the Penal Code by virtue of which "all persons who have no fixed address, no means of subsistence and who habitually exercise no legal profession, job or occupation and who have the capacity to work, are vagrants".

By virtue of section 306, vagrants are punishable by minimum sentences of minor detention and are subject to supervision by the authorities.

The Committee requests the Government to examine sections 305 and 306 of the Penal Code in the light of the Convention with a view to ensuring that only persons who disturb the public order by acts other than habitual abstention from work are liable to penalties.

4. The Committee notes the information supplied by the Government concerning the Military Labour Corps.