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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

After observing that Act No. 20.940 (Modernization of the Labour Relation System) introduces a new requirement for the establishment of trade unions in enterprises with 50 or fewer workers, adding to the current requirement of at least eight workers an additional requirement to represent a minimum of 50 per cent of the total number of workers (section 227 of the Labour Code), and that several trade union organizations denounced the fact that the additional requirement that has been introduced makes the establishment of workers’ organizations difficult, the Committee requested the Government to provide practical information on the impact of this new requirement for the establishment of unions in enterprises with 50 or fewer workers. The Committee notes that the Government cites a 2017 Opinion of the Directorate for Labour, which indicates that: (i) the new requirement responds to the need to encourage the establishment of more representative organizations with increased autonomy to promote the defence of collective interests and more equitable labour relations within the enterprise; (ii) in enterprises where there is no trade union, an organization with a minimum of eight workers may be established, and must achieve the required quorum within one year; and (iii) for the purposes of calculating the total number of workers in the enterprise, those prevented from collective bargaining must be deducted, without prejudice to their right to join a trade union organization. While noting these indications, the Committee regrets that it has not received any information on the impact of the new requirement in question for the establishment of unions in enterprises of 50 or fewer workers. The Committee recalls that in its previous comments, it noted that enterprises with fewer than 50 workers represented more than 80 per cent of the country’s enterprises. The Committee therefore again requests the Government to provide the above information.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee requested the Government to adopt 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). The Committee notes the Government’s indication that the section in question has not been subject to legal amendment nor been the object of an opinion issued by the Directorate for Labour. The Committee recalls once again that to avoid undue restriction of 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 therefore again requests the Government to take the necessary measures in this regard and to report any developments.

Date of the commencement of a strike. Section 350 of the Labour Code provides that the strike shall be carried out as from the fifth day of its approval, in order to allow a waiting period between the strike ballot and the effective commencement of the strike. Several social partners have challenged this provision, on the grounds that it imposes an excessive period of time between the ballot and the commencement of the strike, which limits the exercise of the right to strike. The Committee requested the Government to reply to these observations and to provide further information on the application of this provision in practice, indicating 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. The Committee notes that the Government provides copies of two opinions issued by the Directorate for Labour that refer to cases in which the strike was not voted in good time and form, and reiterates that, in conformity with section 350, if the strike is approved, it shall be effective as from the fifth day of its approval. While noting these opinions, the Committee again requests the Government to provide information on the application of this provision in practice, indicating what, if any, are the consequences, obligations and/or penalties imposed on the union should it wishes to commence a strike before or after the date 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. The Committee noted that since the entry into force of this new provision in 2017, there has only been one court application for the resumption of work which, though upheld by the court, was not applied, as during the time given for the implementation of the order, the parties agreed to end the strike. The Committee requested the Government to continue providing information on the application of this provision in practice. The Committee notes that the Government indicates that there is no new information in this regard, since the judicial procedure is not being used and there are no limitations to the exercise of the right to strike in the sense described above. The Committee requests the Government to continue reporting on the application of this provision in practice and to indicate the compensatory guarantees envisaged for workers who may be affected.

Seasonal agricultural workers. Recalling that seasonal agricultural workers do not fall into any of the categories for which the right to strike may be restricted, the Committee requested the Government to take the necessary measures to ensure in law and in practice that seasonal agricultural workers can enjoy the right to strike in the same way as other workers. Noting that the Government provides no information in this regard, the Committee refers to its previous request to the Government.

Application of the Convention in practice. With regard to the previous observations of the social partners who indicated that the courts have denied the capacity of the trade unions to represent their 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 the Government’s indication that, under section 234 of the Labour Code, the judicial representation of a union is vested in its executive board, which shall represent it judicially and extrajudicially. The workers’ organizations have also affirmed that the labour reform has facilitated interference by the 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). The Committee has observed that, since the entry into force of the current section 297 of the Labour Code, five applications have been made by employers to the Directorate of Labour for dissolution of unions. The Committee notes that the Government cites two rulings handed down in 2022 and 2023 upholding the dissolution of trade unions on grounds of non-compliance with the requirements for their establishment. The Committee requests the Government to continue to report on the application of this provision in practice, in particular on judicial procedures initiated by the Directorate for Labour through labour tribunals at the instigation of employers.

Finally, the Committee requested the Government to provide its comments on the allegations that the system for the determination of minimum services undermines in practice the effective exercise of the right to strike (including in relation to the independence of the bodies making such decisions; requests for minimum services submitted outside the time limits, and enterprises providing non-essential services that have succeeded in obtaining minimum services covering over 70 per cent of the personnel). The Committee requested 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. The Committee notes that the Government indicates that the establishment of minimum services depends on the scope of each specific negotiation; thus, if in a given enterprise certain posts demand high levels of care and attention, strike action is only limited where such posts cannot be kept operational by staff not exercising their fundamental right to strike. While taking note of the Government’s indications, the Committee observes that the concerns abovementioned were also related to the independence of the bodies which determine the minimum services as well as requests submitted outside the time limits. In addition, observing that the Government did not provide information on any minimum services covering over 50 per cent of the personnel that have been recorded, the Committee reiterates its previous request to provide detailed comments in relation to the above-mentioned concerns.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

In its previous comment, the Committee noted serious allegations made by the International Trade Union Confederation (ITUC) and by the Single Central Organization of Workers of Chile (CUT) in 2020, which included the violent repression of the protest against an anti-union reform, as well as the detention of trade union leaders and the death of a trade union leader of artisanal fishers (challenging the official version of suicide as the cause of death). The Committee regrets to note that the Government has sent no comments in this regard, and has likewise provided no comments in relation to the many observations made by the social partners in 2016 and 2019. The Committee again requests the Government to provide its comments without delay.

Articles 2 and 3 of the Convention. Legislative matters. In its previous comment the Committee reiterated its hope that the Government would take the necessary measures as soon as possible to bring the following provisions into conformity with the Convention:

• 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;
• section 48 of Act No. 19296, which establishes rules on associations of State administration officials and grants broad powers to the Directorate for Labour for the supervision of the accounts and financial assets and property of associations. The Committee notes the Government’s indication that although the section has not been amended, the Directorate for Labour issued several opinions between 2015 and 2022, in which it emphasized that it is not for it to supervise the financial administration of associations, but for the associations themselves to perform that task. The Government stresses that the doctrine of the Directorate of Labour is consistent with the principles of freedom of association and leaves it to organizations to control their own accounts, financial assets and property;
• section 11 of Act No. 12927 on the internal security of the State, which provides that an interruption or strike in certain services may be penalized with imprisonment or banishment, and the amendment of 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 that the Government indicates that these provisions have not been applied. The Committee also recalls that on previous occasions, the Government indicated that no penal sanction should be imposed on a worker for participating peacefully in a strike, which is merely the exercise of an essential right.

The Committee takes due note of the Government’s indications that some provisions have not been applied in practice as written, but emphasizing the importance of legal certainty on these subjects, the Committee hopes that the Government will not delay in taking the necessary measures to bring the provisions mentioned into conformity with the Convention and requests it to report thereon.

Article3. Right of organizations to organize their activities and to formulate their programmes. Exclusion from strike action of enterprises declared to be strategic. Section 362 of the Labour Code, under the heading of the determination of enterprises in which the right to strike may not be exercised, provides that a strike may not be called for workers providing services in corporations or enterprises, irrespective of their nature, purpose or function, which provide services of public utility or the cessation of which would cause serious damage to health, the national economy, the supply of goods to the population or to national security. The Committee observed that this definition of enterprises in which the right to strike cannot be exercised, renewed every two years and approved jointly by various ministries and subject to appeal before the Court of Appeal, potentially covers services which go beyond the definition of essential services in the strict sense of the term (those the interruption of which may endanger the life, personal safety or health of the whole or part of the population). The Committee noted that the concepts of public utility and of damage to the economy are broader than that of essential services, observing that “services of public utility” are already covered by the system of minimum services established in section 359, which is distinct from the concept of essential services in the strict sense of the term. While reiterating that section 362 of the Labour Code should be amended to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee requests the Government to provide information on the application in practice of this section. The Committee notes that the Government provides a copy of the list, published in 2021, of public enterprises the workers of which are not able to exercise the right to strike, under section 362 of the Labour Code. The Government also cites a ruling of the Santiago Court of Appeal from 2017 which upheld a claim lodged by a trade union and ordered the removal of an enterprise from the list, thereby allowing the workers of that enterprise to exercise the right to strike. The Government also indicates that the Office of the Comptroller General of the Republic has reached similar conclusions in its opinions. The Committee takes due note of this information and also observes that it has received no new observations that refer to complaints submitted in relation to the list of enterprises in which workers are excluded from the right to strike. In light of the above, and reiterating once more the need to amend section 362 of the Labour Code to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee requests the Government to continue to provide information on the application in practice of this section, specifying the categories of services provided by the enterprises excluded from the exercise of the right to strike, and the treatment of the complaints submitted in this regard. The Committee also recalls once more that, without calling into question the right to strike of the large majority of workers, a negotiated minimum service may be established for public services of fundamental importance that are not essential services in the strict sense of the term.

Replacement of workers. The Committee noted that although the Labour Code contains a provision prohibiting the replacement of striking workers, as well as sanctions in the event of such a replacement (sections 345, 403 and 407), other provisions could undermine or introduce uncertainty into such prohibition to replace striking workers. The General Confederation of Public and Private Sector Workers (CGTP) previously referred to the possibility envisaged in section 306 of the Labour Code 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. The Committee requested the Government to provide further information on the above-mentioned sections. The Committee notes that, according to the Government, between January 2019 and June 2023, a total of 272 complaints of strike replacement were lodged with the Directorate for Labour and that these resulted in 268 inspections of enterprises. The Committee also observes, according to the information provided by the Government in relation to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Directorate for Labour maintains a register of convictions for anti-union or unfair practices and publishes a list of offending enterprises and trade union organizations every six months. The Committee notes that, according to this register, between the second half of 2020 and the first quarter of 2023, the fines applied in cases of replacement of striking workers varied from 20 to 120 Monthly Tax Units (approximately equivalent to US$1,400 to US$8,800). The Committee requests the Government to continue to provide information on violations of the law prohibiting replacement of striking workers, the penalties applied in these cases, and on the impact of the hiring of workers under section 306 on striking workers or services interrupted due to a strike.

Exercise of the right to strike beyond the framework of regulated collective bargaining. The Committee noted that, in general terms, the exercise of the right to strike is regulated within the framework of regulated collective bargaining. It also recalled that the Committee on Freedom of Association: (i) given that existing legislation does not permit strike action outside the context of the collective bargaining process, requested the Government, in consultation with workers’ and employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of freedom of association (367th Report, March 2013, Case No. 2814), and (ii) recalling the principle that the occupational and economic interests that workers defend through the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the enterprise which are of direct concern to the workers, requested the Government to take all the necessary measures, including legislative measures if necessary, to uphold this principle (371st Report, March 2014, Case No. 2963). The Committee requested the Government to provide information on the measures taken in this regard. The Committee notes that the Government indicates, with court rulings in support, that it cannot be maintained that the right to strike outside the framework of collective bargaining is prohibited, to the extent that it is an essential right, and as such requires a specific rule for its general limitation, which the national legislation does not provide. While taking note of these indications, the Committee reminds the Government of the need to adopt measures in relation to the Committee on Freedom of Association’s recommendations cited above. The Committee once again requests the Government to report on all measures taken in this regard.

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

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

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.

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020) relating to the measures adopted in the context of the COVID-19 pandemic with regard to the application of the Convention. In this respect, the Committee welcomes the measures indicated by the Government with a view to extending the mandates of trade union executives during the state of emergency (with the possibility for the organizations to elect their representatives if they considered that the conditions existed for holding elections), and to ensuring that workers engaged in telework are informed of the existence of unions in the enterprise, and other measures to facilitate the action and consultation of workers’ organizations on measures related to the pandemic, such as their participation in agreements for the reduction of working hours as a consequence of the health emergency, and their capacity to defend their members in the event of any flaws in the suspension of employment relations.

The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 15 September 2020, alleging the violent repression of the protest against an anti-union reform at the end of 2019, including the temporary detention and injuries suffered by various trade union leaders, as well as the attempt to break into the headquarters of the Single Central Organization of Workers of Chile (CUT). The Committee also notes the observations of the CUT, received on 6 October 2020, also alleging limitations on the exercise of the right to demonstrate and on trade union activities, and the arbitrary and unjustified detention of 24 trade union leaders in several cities, as well as the death of a trade union leader of artisanal fishers (challenging the official version of suicide as the cause of his death), raids on and attempts to enter trade union premises (in particular the CUT headquarters, also alleged by ITUC), and spying on and monitoring trade union leaders. The Committee requests the Government to provide its comments on these serious allegations.

The Committee notes that, as to the complaint made under article 26 of the ILO Constitution alleging failure to comply with this and other ILO Conventions by the Republic of Chile, made by a Worker delegate to the International Labour Conference in 2019, the Governing Body: (i) decided not to refer the matter to a Commission of Inquiry and to close the procedure under article 26; and (ii) invited the Government to continue reporting to the ILO regular supervisory system on measures taken to apply in law and practice the Conventions concerned.

As to other pending matters, the Committee reiterates the content of its previous comments adopted in 2019 and reproduced below.

The Committee notes the observations on the application of the Convention in law and practice (including allegations of violations in the public, food, transport and copper sectors) provided by the following organizations: the National Association of Fiscal Employees (ANEF), received on 29 August 2019; the Confederation of Copper Workers (CTC), the General Confederation of Public and Private Sector Workers (CGTP), and the World Federation of Trade Unions (WFTU, taking up the observations of the CGTP), all received on 30 August 2019; the International Trade Union Confederation (ITUC), received on 1 September 2019; as well as the observations of the Federation of Workers’ Unions of Chile (FESINTRACH), received on 2 September 2019, the No. 1 Promoter CMR Falabella Enterprise Union, received on 20 September 2019, and the Single Central Organization of Workers of Chile (CUT), received on 26 October 2019. The Committee requests the Government to provide its comments in this regard. Noting that the Government has not replied to the various requests made in its previous comments, including with regard to the multiple observations made by social partners in 2016, the Committee trusts that it will receive the missing information in the next report.

Articles 2 and 3 of the Convention. Legislative matters not covered by the reform of the Labour Code. In its previous comment, while noting with satisfaction the amendment or repeal of various provisions of the Labour Code which were not in conformity with the Convention, the Committee observed that the following provisions had not yet been brought into conformity with the Convention:

• -Amendment of 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. In its previous comments, the Committee welcomed the submission of a draft constitutional amendment in October 2014 to remove these restrictions, but noted that the draft had not been approved.
• -Amendment of section 48 of Act No. 19296, which grants broad powers to the Directorate for Labour for the supervision of the accounts and financial assets and property of associations. In its previous comment, the Committee noted the Government’s indication that the approach adopted by the Directorate for Labour in that regard is consistent with the principles of freedom of association and leaves it to organizations to control their own accounts, financial assets and property; and that a protocol agreement had been agreed between the Government and the public sector round-table of 2014 which included the commitment to address possible amendments to Act No. 19296.
• -Repeal of section 11 of Act No. 12927 on the internal security of the State, which provides that an interruption or strike in certain services may be penalized with imprisonment or banishment, and the amendment of 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. In its previous observation, the Committee noted the Government’s indication that these provisions had not been applied and recalled 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 observes that in its latest report the Government has not provided any further information on the application, amendment or repeal of these provisions, and that the observations of the various social partners continue to denounce the incompatibility of these provisions with the Convention. The Committee once again 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 and requests it to report any developments in this regard.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Exclusion from strike action of enterprises declared to be strategic. Section 362 of the Labour Code, under the heading of the determination of enterprises in which the right to strike may not be exercised, provides that a strike may not be called for workers providing services in corporations or enterprises, irrespective of their nature, purpose or function, which provide services of public utility or the cessation of which would cause serious damage to health, the national economy, the provision of supplies to the population or national security. In its previous comment, the Committee recalled that this definition of enterprises in which the right to strike cannot be exercised, to be approved jointly by various ministries and subject to appeal to the Court of Appeal, potentially covers services which go beyond the definition of essential services in the strict sense of the term (those the interruption of which may endanger the life, personal safety or health of the whole or part of the population). Recalling that the prohibition of strikes relating to the services provided should be limited to essential services in the strict sense of the term, the Committee reiterated that the concepts of public utility and of damage to the economy are broader than that of essential services. The Committee also observed that “services of public utility” would already be covered by the system of minimum services established in section 359, which is distinct from the concept of essential services in the strict sense of the term. Observing that the Government has not provided the requested information on the application of this provision in practice, the Committee notes that, according to the indications of the ITUC, under the terms of this provision a list was approved in August 2017 of 100 enterprises considered to be strategic and excluded from the exercise of the right to strike, which include enterprises in the health and energy sectors, and that 14 unions have lodged appeals in this regard with the Court of Appeal. The Committee also notes that in August 2019 a new list was published of enterprises considered to be strategic and excluded from the exercise of the right to strike (43 enterprises were removed from the former list of 100 enterprises, and 15 new enterprises were added). While considering that section 362 of the Labour Code should be amended to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee once again requests the Government to provide information on the application in practice of section 362 of the Labour Code, with an indication of the various categories of services provided by the enterprises excluded from the exercise of the right to strike, and the action taken in relation to any complaints lodged in this respect. The Committee recalls that, without calling into question the right to strike of the large majority of workers, a negotiated minimum service may be established for public services of fundamental importance that are not essential services in the strict sense of the term.

Replacement of workers. In its previous comment, while on the one hand the Committee noted with satisfaction the introduction in the Labour Code of a prohibition to replace striking workers, as well as the sanctions in the event of such a replacement (sections 345, 403 and 407) on the other hand, it noted that, according to the CGTP, other recently introduced provisions could undermine or introduce uncertainty into such prohibition to replace striking workers. The CGTP referred, in particular, to the possibility envisaged in new section 306 of the Labour Code 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 regard, the CGTP alleged that over 50 per cent of workers in the country work in subcontracting enterprises). The Committee requested the Government to provide its comments on the observations of the CGTP and to report on the application in practice of sections 306, 345, 403 and 407, including the sanctions imposed for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on the workers or services interrupted due to a strike. The Committee notes that the Government reports various legal opinions issued by the Directorate for Labour concerning these provisions, including an opinion that it is not in accordance with the law for an enterprise providing temporary services to provide workers to a principal enterprise for the performance of work or services which have been interrupted due to a strike by workers in the enterprise contracted to perform them. The Committee welcomes these clarifications, while noting that the Government has not provided further information on the application in practice of the above-referred provisions. The Committee also notes that the issue of the replacement of workers is the subject of additional observations by the social partners. In this respect, the CTC indicates that section 403 of the Labour Code supports the internal replacement of striking workers, and the CGTP denounces the fact that the authorities have allowed the replacement of striking workers in the public passenger transport sector in Santiago de Chile. The Committee requests the Government to provide its comments on the observations of the social partners on these matters, and to provide further information on the application in practice of sections 306, 345, 403 and 407, including on the sanctions applied for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on striking workers or services interrupted due to a strike.

Exercise of the right to strike beyond the framework of regulated collective bargaining. In previous comments, the Committee noted that, in general terms, the exercise of the right to strike is regulated exclusively within the framework of regulated collective bargaining. In this respect, the Committee referred to the recommendations made to the Government by the Committee on Freedom of Association (CFA), in which: (i) given that existing legislation does not permit strike action outside the context of the collective bargaining process, the CFA requested the Government, in consultation with workers’ and employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of freedom of association (see 367th Report, March 2013, Case No. 2814, paragraph 365); and (ii) recalling the principle that the occupational and economic interests that workers defend through the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the enterprise which are of direct concern to the workers, the CFA requested the Government to take all the necessary measures, including legislative measures if necessary, to uphold this principle, and to submit the legislative aspects of the case to the Committee of Experts (see 371st Report, March 2014, Case No. 2963, paragraph 238).

In this regard, certain social partners (see for example, the observations of the ITUC in 2016, the CGTP in 2016 and 2019, and the CTC in 2019) have been denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining. The Committee also noted that a ruling of 23 October 2015 of the Court of Appeal of Santiago held that the sole fact that the law regulates strike action in one instance, that is in the context of regulated collective bargaining, cannot lead to the conclusion that outside that context strikes are prohibited, based on the understanding that matters that the legislature has failed to regulate or define cannot be held to be prohibited (the Committee refers to other recent rulings along these same lines, such as the ruling by the Labour Court of Antofagasta of 6 August 2019, finding that the right to strike is an essential right regulated by the Convention and that the Supreme Court has found that the right to strike is guaranteed even outside the framework of collective bargaining procedures). In light of the judicial decisions referred to above, the Committee once again requests the Government to provide its comments on the observations of the social partners denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining and to provide information on any measures taken in relation to the recommendations referred to in this regard.

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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 the 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 (CGTP) that this new requirement makes it difficult to establish trade unions and considers that it will result in the disappearance of trade unions in many workplaces. The Committee notes that the Government has not complied with the Committee’s request to reply to the CGTP’s observations and that the CGTP, as well as 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 the provision of information on the application of 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 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 CGTP 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 for 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 with 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 or 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 obtained covering over 50 per cent of the personnel that have been recorded by the Directorate for Labour.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations on the application of the Convention in law and practice (including allegations of violations in the public, food, transport and copper sectors) provided by the following organizations: the National Association of Fiscal Employees (ANEF), received on 29 August 2019; the Confederation of Copper Workers (CTC), the General Confederation of Public and Private Sector Workers (CGTP), and the World Federation of Trade Unions (WFTU, taking up the observations of the CGTP), all received on 30 August 2019; the International Trade Union Confederation (ITUC), received on 1 September 2019; as well as the observations of the Federation of Workers’ Unions of Chile (FESINTRACH), received on 2 September 2019, the No. 1 Promoter CMR Falabella Enterprise Union, received on 20 September 2019, and the Single Central Organization of Workers of Chile (CUT), received on 26 October 2019. The Committee requests the Government to provide its comments in this regard. Noting that the Government has not replied to the various requests made in its previous comments, including with regard to the multiple observations made by social partners in 2016, the Committee trusts that it will receive the missing information in the next report.

The Committee notes that a complaint has been made under article 26 of the ILO Constitution alleging failure to comply with this and other ILO Conventions by the Republic of Chile, made by a Worker delegate to the International Labour Conference in 2019, which has been declared receivable and is pending before the Governing Body.

Articles 2 and 3 of the Convention. Legislative matters not covered by the reform of the Labour Code. In its previous comment, while noting with satisfaction the amendment or repeal of various provisions of the Labour Code which were not in conformity with the Convention, the Committee observed that the following provisions had not yet been brought into conformity with the Convention;

• -Amendment of 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. In its previous comments, the Committee welcomed the submission of a draft constitutional amendment in October 2014 to remove these restrictions, but noted that the draft had not been approved.
• -Amendment of section 48 of Act No. 19296, which grants broad powers to the Directorate for Labour for the supervision of the accounts and financial assets and property of associations. In its previous comment, the Committee noted the Government’s indication that the approach adopted by the Directorate for Labour in that regard is consistent with the principles of freedom of association and leaves it to organizations to control their own accounts, financial assets and property; and that a protocol agreement had been agreed between the Government and the public sector round-table of 2014 which included the commitment to address possible amendments to Act No. 19296.
• -Repeal of section 11 of Act No. 12927 on the internal security of the State, which provides that an interruption or strike in certain services may be penalized with imprisonment or banishment, and the amendment of 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. In its previous observation, the Committee noted the Government’s indication that these provisions had not been applied and recalled 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 observes that in its latest report the Government has not provided any further information on the application, amendment or repeal of these provisions, and that the observations of the various social partners continue to denounce the incompatibility of these provisions with the Convention. The Committee once again 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 and requests it to report any developments in this regard.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Exclusion from strike action of enterprises declared to be strategic. Section 362 of the Labour Code, under the heading of the determination of enterprises in which the right to strike may not be exercised, provides that a strike may not be called for workers providing services in corporations or enterprises, irrespective of their nature, purpose or function, which provide services of public utility or the cessation of which would cause serious damage to health, the national economy, the provision of supplies to the population or national security. In its previous comment, the Committee recalled that this definition of enterprises in which the right to strike cannot be exercised, to be approved jointly by various ministries and subject to appeal to the Court of Appeal, potentially covers services which go beyond the definition of essential services in the strict sense of the term (those the interruption of which may endanger the life, personal safety or health of the whole or part of the population). Recalling that the prohibition of strikes relating to the services provided should be limited to essential services in the strict sense of the term, the Committee reiterated that the concepts of public utility and of damage to the economy are broader than that of essential services. The Committee also observed that “services of public utility” would already be covered by the system of minimum services established in section 359, which is distinct from the concept of essential services in the strict sense of the term.

Observing that the Government has not provided the requested information on the application of this provision in practice, the Committee notes that, according to the indications of the ITUC, under the terms of this provision a list was approved in August 2017 of 100 enterprises considered to be strategic and excluded from the exercise of the right to strike, which include enterprises in the health and energy sectors, and that 14 unions have lodged appeals in this regard with the Court of Appeal. The Committee also notes that in August 2019 a new list was published of enterprises considered to be strategic and excluded from the exercise of the right to strike (43 enterprises were removed from the former list of 100 enterprises, and 15 new enterprises were added). While considering that section 362 of the Labour Code should be amended to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee once again requests the Government to provide information on the application in practice of section 362 of the Labour Code, with an indication of the various categories of services provided by the enterprises excluded from the exercise of the right to strike, and the action taken in relation to any complaints lodged in this respect. The Committee recalls that, without calling into question the right to strike of the large majority of workers, a negotiated minimum service may be established for public services of fundamental importance that are not essential services in the strict sense of the term.

Replacement of workers. In its previous comment, while on the one hand the Committee noted with satisfaction the introduction in the Labour Code of a prohibition to replace striking workers, as well as the sanctions in the event of such a replacement (sections 345, 403 and 407) on the other hand, it noted that, according to the CGTP, other recently introduced provisions could undermine or introduce uncertainty into such prohibition to replace striking workers. The CGTP referred, in particular, to the possibility envisaged in new section 306 of the Labour Code 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 regard, the CGTP alleged that over 50 per cent of workers in the country work in subcontracting enterprises). The Committee requested the Government to provide its comments on the observations of the CGTP and to report on the application in practice of sections 306, 345, 403 and 407, including the sanctions imposed for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on the workers or services interrupted due to a strike. The Committee notes that the Government reports various legal opinions issued by the Directorate for Labour concerning these provisions, including an opinion that it is not in accordance with the law for an enterprise providing temporary services to provide workers to a principal enterprise for the performance of work or services which have been interrupted due to a strike by workers in the enterprise contracted to perform them. The Committee welcomes these clarifications, while noting that the Government has not provided further information on the application in practice of the above-referred provisions. The Committee also notes that the issue of the replacement of workers is the subject of additional observations by the social partners. In this respect, the CTC indicates that section 403 of the Labour Code supports the internal replacement of striking workers, and the CGTP denounces the fact that the authorities have allowed the replacement of striking workers in the public passenger transport sector in Santiago de Chile. The Committee requests the Government to provide its comments on the observations of the social partners on these matters, and to provide further information on the application in practice of sections 306, 345, 403 and 407, including on the sanctions applied for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on workers or services interrupted due to a strike.

Exercise of the right to strike beyond the framework of regulated collective bargaining. In previous comments, the Committee noted that, in general terms, the exercise of the right to strike is regulated exclusively within the framework of regulated collective bargaining. In this respect, the Committee referred to the recommendations made to the Government by the Committee on Freedom of Association (CFA), in which: (i) given that existing legislation does not permit strike action outside the context of the collective bargaining process, the CFA requested the Government, in consultation with workers’ and employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of freedom of association (Case No. 2814, 367th Report, paragraph 365); and (ii) recalling the principle that the occupational and economic interests that workers defend through the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the enterprise which are of direct concern to the workers, the CFA requested the Government to take all the necessary measures, including legislative measures if necessary, to uphold this principle, and to submit the legislative aspects of the case to the Committee of Experts (Case No. 2963, 371st Report, paragraph 238).

In this regard, certain social partners (see for example, the observations of the ITUC in 2016, the CGTP in 2016 and 2019, and the CTC in 2019) have been denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining. The Committee also noted that a ruling of 23 October 2015 of the Court of Appeal of Santiago held that the sole fact that the law regulates strike action in one instance, that is in the context of regulated collective bargaining, cannot lead to the conclusion that outside that context strikes are prohibited, based on the understanding that matters that the legislature has failed to regulate or define cannot be held to be prohibited (the Committee refers to other recent rulings along these same lines, such as the ruling by the Labour Court of Antofagasta of 6 August 2019, finding that the right to strike is an essential right regulated by the Convention and that the Supreme Court has found that the right to strike is guaranteed even outside the framework of collective bargaining procedures). In light of the judicial decisions referred to above, the Committee once again requests the Government to provide its comments on the observations of the social partners denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining and to provide information on any measures taken in relation to the recommendations referred to in this regard.

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

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

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

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

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

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

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

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

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

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.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the Government’s reply to the 2009 and 2011 comments from the International Trade Union Confederation (ITUC) and from the National Inter-Enterprise Union of Airport Workers of Chile and other unions in various sectors. The Committee further notes that, according to the Government these comments as well as the Government’s reply to them have been examined by the Committee on Freedom of Association in the context of Case No. 2912.

The Committee also notes the comments from the Trade Unions Federation of CODELCO Chile Supervisors and Professionals (FESUC) dated 14 June 2012 and the Government’s reply to them. Specifically, as regards the objection of FESUC to the obligation for non-unionized workers receiving the benefits laid down in a collective agreement to pay 75 per cent of standard monthly union dues (section 346 of the Labour Code), the Committee considers that such clauses should be the result of free negotiation between workers’ organizations and employers [see General Survey on the fundamental Conventions, 2012, paragraph 99]. The Committee requests the Government, in the context of aligning the legislation to the Convention as referred to in its report, to consider the possibility of amending the abovementioned section in the manner indicated and to provide information on this matter in its next report.

Article 3 of the Convention. Right of organizations to organize their activities and formulate their programmes. The Committee draws the Government’s attention to its comments on the right to strike made in this year’s observation on the application of the Convention which refer to the need to take measures to amend the provisions of the Labour Code relating to: (i) the excessive majorities required for calling a strike (sections 372, 373 and 379); (ii) the excessively short time for carrying out a strike once it has been called (section 374); (iii) the possibility of replacing strikers (section 381); (iv) the prohibition on strike action in services that are non-essential in the strict sense of the term (section 384); and (v) the possibility that the President of the Republic may order the resumption of work (section 385). Furthermore, the Committee asked the Government to: (a) ensure that agricultural workers enjoy the right to strike; (b) repeal section 11 of Act No. 12927 concerning the internal security of the State, which provides that a stoppage or strike in certain services may be penalized with imprisonment or banishment; and (c) amend section 254 of the Penal Code, which provides for criminal penalties in the event of interruption of public services or public utilities or of dereliction of duty by public employees.

The Committee requests the Government to supply information in its next report on any measures taken to amend the legislation in the manner indicated.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments from the International Trade Union Confederation (ITUC) dated 30 August 2013 concerning the application of the Convention, particularly the allegations concerning the murder of a trade union official in the electrical engineering sector, the assault of a trade union official in the dock sector by the police, the threats to unionized workers in the courier services sector and the dispersal of demonstrators. The Committee notes these allegations with concern and requests the Government to send its observations on these matters.

For several years, the Committee has been asking the Government to amend or repeal various legislative provisions, or to take measures to ensure that all workers are afforded the guarantees laid down in Articles 2 and 3 of the Convention.

Specifically, the Committee has asked the Government to take steps to: (i) ensure that officials of the judiciary are afforded the guarantees set forth in the Convention; (ii) 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 political party activities; (iii) amend various sections of the Labour Code concerned with the right to strike; and (iv) amend section 48 of Act No. 19296, which grants broad powers to the Directorate of Labour for the supervision of the accounts and financial and property transactions of associations. The Committee notes that the Government reiterates as in its previous report, its willingness, to incorporate into the relevant national legislation all the necessary provisions to ensure prompt alignment with the Convention. The Committee hopes that the Government will take all the necessary measures in the very near future to bring the legislation into conformity with the Convention.

The Committee reminds the Government that, in the context of the reform of the legislation, it may avail itself of technical assistance from the Office if it so wishes.

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

The Committee notes the comments from the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning the application of the Convention and also the Government’s reply, which indicates that its observation will be sent as soon as possible. The Committee requests the Government to send its observations in this respect, and also on the comments made in 2009 by the ITUC, the National Inter-Enterprise Union of Airport Workers of Chile and other unions in various sectors. The Committee also notes the comments from the Confederation of Production and Commerce (CPC) dated 10 August 2011 concerning the position of the Employers’ group at the ILO regarding the right to strike. The Committee notes that the draft reform of the Constitutional Organic Act on municipalities, No. 18695, which dealt with the right to strike, was rejected in the Chamber of Deputies.

Articles 2 and 3 of the Convention. The Committee recalls that it has been requesting the Government for several years to amend or repeal various legislative provisions, or to take measures to ensure that certain workers are afforded the guarantees laid down in the Convention. Specifically, in its previous comments, the Committee requested the Government to take steps to:

• – repeal section 11 of Act No. 12927 concerning the internal security of the State, which provides that any interruption or collective suspension, stoppage or strike in public services or public utilities, or in production, transport or commercial activities which is not in accordance with the law and is detrimental to public order or to compulsory legal functions or is damaging to any vital industries shall constitute an offence and be penalized with imprisonment or relegation;
• – ensure that officials of the judiciary are afforded the guarantees set forth in the Convention;
• – 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 political party activities;
• – amend sections 372 and 373 of the Labour Code, under which an absolute majority of workers in the enterprise is required for a decision to strike;
• – amend section 374 of the Labour Code, under which a strike must be carried out within three days of the decision to call it, otherwise the workers in the enterprise concerned shall be deemed to have refrained from going on strike and so accept the employer’s final offer;
• – amend section 379 of the Labour Code, which provides that at any time the group of workers concerned by the negotiations may be called upon to vote, by at least 20 per cent of them, for the purpose of taking a decision, by absolute majority, to censure the negotiating committee, in which case a new committee shall be elected forthwith;
• – amend section 381 of the Labour Code containing a general prohibition on the replacement of striking workers but which provides for the possibility of such replacement subject to compliance by the employer with certain conditions in the final offer during the process of negotiation, and the requirement to pay a bond of four units of account (UF) for each worker hired as a replacement. The Committee notes that the Government recalls that the possibility of replacement of striking workers is generally prohibited, being an exceptional facility granted to the employer subject to compliance with strict conditions. The Committee recalls that the replacement of striking workers should be limited to cases in which strikes may be restricted or even prohibited, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State, in essential services in the strict sense of the term and in situations of acute national or local crisis, or in the event of non-compliance with a minimum service;
• – amend section 384 of the Labour Code, which provides that strikes may not be called by workers in enterprises which provide public utility services, or services the interruption of which would seriously endanger the health, public supply, the national economy or national security (section 384(3) provides that, in such cases, if no agreement is reached between the parties to the bargaining, the matter shall be referred to compulsory arbitration). The Committee notes the Government’s reference to Case No. 2649 examined by the Committee on Freedom of Association (CFA) and its indication that the Comptroller-General of the Republic has stated that this restriction on the declaration of a strike would be justified in view of the fact that: (a) the employees work in certain entities whose operation must be ensured on a continuous basis for reasons of public interest and on account of the principle of the State’s readiness for service referred to in article 1(3) of the Constitution, which obliges the State to promote the common good; (b) in order to apply this prohibition, since no distinctions are made regarding the conditions in which part of the work is to be executed, the respective entities have recourse to the subcontracting system; and (c) ILO Conventions Nos 87, 98 and 151 do not contain any statements or requirements specifically concerning the situation of strikes in entities that provide essential services for the public. While noting this information, the Committee recalls that the definition of services in which strikes may be prohibited, and also the list drawn up by the government authorities, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and that the aforementioned list includes certain private port terminals which cannot be considered as essential services in the strict sense of the term;
• – amend or repeal section 385 of the Labour Code, which provides that, in the event of a strike which by reason of its nature, timing or duration causes serious risk to health, the supply of goods or services to the population, the national economy or national security, the President of the Republic may order the resumption of work. The Committee notes the Government’s statement that the Directorate of Labour, which is responsible for defining the substance and scope of labour standards, stated in opinion No. 5062/093 of 26 November 2010 that the concept of “essential services” contained in section 380(1) of the Labour Code should be interpreted as “services the interruption of which could endanger the life, personal safety or health of all or part of the population”. The Committee observes that the definition of services with respect to which the President of the Republic can order the resumption of work goes beyond that of essential services in the strict sense of the term;
• – ensure in law and in practice that agricultural workers enjoy the right to strike;
• – amend section 254 of the Penal Code, which provides for criminal penalties in the event of interruption of public services or public utilities or dereliction of duty by public employees;
• – amend section 48 of Act No. 19296, which grants broad powers to the Directorate of Labour for the supervision of the accounts and financial and property transactions of associations.

While welcoming the Government’s statement that it notes the Committee’s observations and reiterates its willingness to incorporate into the relevant national legislation all the necessary provisions to ensure prompt alignment with the Convention, the Committee hopes that the Government will take all the necessary measures in the near future to amend the legislation to bring it into full conformity with the provisions of the Convention. The Committee requests the Government to provide information in its next report on any measures taken in this respect. The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

Finally, the Committee has been informed of the preparation of a draft reform of the Political Constitution. The Committee requests the Government to provide information in its next report on any progress made in this respect and on the possible inclusion of provisions in amended legislation on the reformed Political Constitution relating to trade union rights.

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

The Committee notes the Government’s reply to the comments of the International Trade Union Confederation (ITUC) of 28 August 2007, which referred to matters under examination by the Committee, as well as to the prohibition of the right to strike by agricultural workers during the harvest. The Committee notes the Government’s indication that Chilean labour legislation envisages a semi-regulated procedure under which agricultural workers represented by a trade union negotiate collectively with their employer an instrument known as an “collective agreement” which, once concluded, has the same effect as a collective contract (sections 314bis A and 314bis B). Such bargaining is not of a binding nature, so that it does not give rise to the rights, prerogatives and duties established through regulated collective bargaining, and consequently there is no right to strike. The fact that these workers cannot negotiate a collective agreement or benefit from the right to strike is due to the fact that they perform seasonal work of short duration. In this respect, the Committee recalls that the right to strike is an intrinsic corollary to the right to organize which may only be restricted in the case of essential services (the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in the case of public servants exercising authority in the name of the State. Under these conditions, observing that agricultural workers do not form part of either of these categories, the Committee requests the Government to take the necessary measures to ensure in law and practice that agricultural workers can enjoy the right to strike. The Committee requests the Government to provide information in this respect.

The Committee notes the comments made by the ITUC on 26 August 2009 on the application of the Convention. The Committee also notes the comments sent by the National Inter-Enterprise Union of Airport Workers of Chile and other unions in various sectors, dated 24 March 2009, which refer to legislative matters already raised by the Committee, and particularly to questions relating to the right to strike. The Committee requests the Government to provide its observations in this regard.

The Committee recalls that for several years it has been asking the Government to amend or repeal various legislative provisions, or to take steps to ensure that certain workers are afforded the guarantees laid down in the Convention. Specifically, in its previous observation, the Committee requested the Government to take steps to:

–           repeal section 11 of Act No. 12927 on the internal security of the State, which provides that any interruption or collective suspension, stoppage or strike in public services or services of public utility, or in production, transport or commercial activities which is not in accordance with the law and results in prejudice to the public order or to compulsory legal functions or damage to any vital industries shall constitute an offence and be penalized with imprisonment or relegation;

–           ensure that officials of the judiciary are afforded the guarantees set forth in the Convention;

–           amend article 23 of the Political Constitution, which provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for trade union officials who participate in party political activities;

–           amend sections 372 and 373 of the Labour Code, under which an absolute majority of the workers in the enterprise is required for a decision to strike;

–           amend section 374 of the Labour Code, under which a strike must be carried out within three days of the decision to call it, otherwise the workers in the enterprise concerned shall be deemed to have refrained from going on strike and so accept the employer’s final offer;

–           amend section 379 of the Labour Code, which provides that at any time the group of workers concerned by the negotiations may be called upon to vote, by at least 20 per cent of them, for the purpose of taking a decision, by absolute majority, to censure the negotiating committee, in which case a new committee shall be elected forthwith;

–           amend section 381 of the Labour Code containing a general prohibition on the replacement of striking workers, but which provides for the possibility of such replacement subject to compliance by the employer with certain conditions in the final offer during the process of negotiation, and the requirement to pay a bond of four units of account (UF) for each worker hired as a replacement;

–           amend section 384 of the Labour Code, which provides that strikes may not be called by workers in enterprises which provide public utility services, or services the interruption of which would seriously endanger the health, public supply, the national economy or national security (the third subsection of section 384 provides that, in such cases, if no agreement is reached between the parties to the bargaining, the matter shall be referred to compulsory arbitration). The Committee noted previously that the definition of services in which strikes may be prohibited, as well as the list drawn up by the government authorities, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. In particular, the list includes certain private port terminals and also the Arica–La Paz railway, which cannot be considered as essential services in the strict sense of the term. The Committee also notes Case No. 2649 examined by the Committee on Freedom of Association relating to the exercise of the right to strike by workers in sanitary enterprises (water supply).

–           amend or repeal section 385 of the Labour Code, which provides that, in the event of a strike which by reason of its nature, timing or duration causes a serious risk to health, the supply of goods or services to the population, the national economy or national security, the President of the Republic may order the resumption of work;

–           amend section 254 of the Penal Code, which provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees; and

–           amend section 48 of Act No. 19296 which grants broad powers to the Directorate of Labour for the supervision of the accounts and financial and property transactions of associations.

The Committee observes that the Government reiterates its intention to include in the relevant domestic legislation all of the provisions necessary to bring the legislation rapidly into harmony with the Convention. The Committee hopes that the Government will take all the necessary measures in the near future to amend the legislation with a view to bringing it fully into conformity with the provisions of the Convention. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

Furthermore, in its previous observation, the Committee noted the preparation of a draft revision of the Constitutional Organic Act on Municipalities, No. 18695, and hoped that it would take into account the principle that the prohibition of the right to strike in the public service should be confined to officials exercising authority in the name of the State. The Committee notes the Government’s indication that the draft text is undergoing its first constitutional reading in the Chamber of Deputies, and that the proposal to adopt legislation on this subject has been approved, while the only amendments adopted concern the removal of the prohibition for trade union leaders to take office as deputies or senators. In these conditions, the Committee requests the Government to provide information in its next report on any progress made in relation to this draft text.

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

The Committee notes the Government’s report and its reply to the comments of the National Inter-enterprise Trade Union of Metallurgy, Communications, Energy and Allied Workers (SME), dated 9 January 2006, and of the National Confederation of Municipal Employees of Chile (ASEMUCH), dated 25 May 2006, which refer to matters already raised by the Committee and to other issues covered below.

The Committee recalls that it has been asking the Government for several years to amend or repeal various legislative provisions, or to take steps to ensure that certain workers are afforded the guarantees laid down in the Convention. Specifically, the Committee asked the Government in its previous observation to take steps to:

–      repeal section 11 of Act No. 12927 on the internal security of the State, which provides that any interruption or collective suspension, stoppage or strike in public services or services of public utility, or in production, transport or commercial activities which is not in accordance with the law and results in prejudice to the public order or to compulsory legal functions or damage to any vital industries shall constitute an offence and be penalized with imprisonment or banishment;

–      ensure that officials of the judiciary are afforded the guarantees set forth in the Convention;

–      amend article 23 of the Political Constitution, which provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for trade union officials who participate in party political activities;

–      amend sections 372 and 373 of the Labour Code, under which an absolute majority of the workers of the enterprise is required for a decision to strike;

–      amend section 374 of the Labour Code, under which a strike must be carried out within three days of the decision to call it, otherwise the workers of the enterprise concerned shall be deemed to have refrained from going on strike and so accept the employer’s final offer;

–      amend section 379 of the Labour Code, which provides that at any time the group of workers concerned by the negotiations may be called upon to vote, by at least 20 per cent of them, for the purpose of taking a decision, by absolute majority, to censure the negotiating committee, in which case a new committee shall be elected forthwith;

–      amend section 381 of the Labour Code containing a general prohibition on the replacement of striking workers, but which provides for the possibility of such replacement subject to compliance by the employer with certain conditions in the final offer during the negotiating process. The Committee notes the Government’s statement that the amendment introduced by Act No. 19759 limits that possibility, requiring the payment of a bond of four units of account (UF) for each worker hired as a replacement. In this respect, the Committee recalls that the contracting of workers to break a strike in a sector not considered as essential in the strict sense of the term for the purposes of prohibiting strikes, constitutes a serious violation of the freedom of association;

–      amend section 384 of the Labour Code which provides that strikes may not be called by workers in enterprises which provide public utility services or services the interruption of which would seriously endanger the health, public supply, the national economy or national security (the third paragraph of section 384 provides that, in such cases, if no agreement is reached between the parties to the bargaining, the matter shall be referred to compulsory arbitration). The Committee noted that the definition of services in which strikes may be prohibited, as set out in section 384, as well as the list drawn up by the government authorities, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee notes the Government’s statement that the list containing the establishments covered by section 384 is drawn up jointly by the Ministries of Labour and Social Security, National Defence and the Economy, Development and Reconstruction in July each year and that the list for 2006 was much shorter than in previous years, with the removal of sanitary services and port enterprises from the list and the extension to them of the right to strike. Nevertheless, the Committee observes that the list includes some private port terminals and also the Arica–La Paz railway, which cannot be considered as essential services in the strict sense of the term;

–      amend or repeal section 385 of the Labour Code, which provides that, in the event of a strike which by its nature, timing or duration causes a serious risk to health, the supply of goods or services to the population, the national economy or national security, the President of the Republic may order the resumption of work;

–      amend section 254 of the Penal Code, which provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees; and

–      amend section 48 of Act No. 19296 which grants broad powers to the Directorate of Labour for supervision of the accounts and financial and property transactions of associations.

The Committee observes that the Government states that it has noted the Committee’s observations in this respect and that these will be taken into consideration in forthcoming discussions for bringing the legislation into conformity with the provisions of the Convention. The Committee regrets that, for several years since the ratification of the Convention, numerous restrictions have continued to be placed on the exercise of the rights established by the Convention. The Committee hopes that the Government will take all the necessary steps to amend the legislation in order to bring it into full conformity with the provisions of the Convention. The Committee requests the Government to supply information in its next report on all measures taken in this respect.

Moreover, with regard to the preparation of a draft revision of the Constitutional Organic Act on Municipalities, No. 18695, the Committee requests the Government once again to make every effort in the accompanying consultation process to take account of the principle whereby the prohibition of the right to strike in the public service should be limited to officials exercising authority in the name of the State and hopes that the final text will take account of this principle.

Finally, the Committee notes the communication dated 28 August 2007 from the International Trade Union Confederation (ITUC), which refers to the issues raised by the Committee and also to the prohibition of the right to strike imposed on agricultural workers during harvest time. The Committee requests the Government to send its comments in this respect.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. The Committee also notes the comments of the National Inter-Enterprise Union of Metallurgists, Energy, Communication and Allied Branches (SME), of 9 January 2006, and of the National Confederation of Municipal Employees of Chile (ASEMUCH) of 25 May 2006. The Committee notes that the SME refers to legislative issues already raised by the Committee and that it raises objections to section 11 of Act No. 12927 on the internal security of the State, which provides that any interruption or collective suspension, stoppage or strike in public services or services of public utility, or in production, transport or commercial activities which is not in accordance with the law and results in prejudice to the public order or to compulsory legal functions or damage to any vital industries shall constitute an offence and be penalized with imprisonment or banishment. In this respect, the Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, both excessive recourse to the courts in labour relations and the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all they should be justified by the seriousness of the offences committed and should be subject to normal judicial review (see 1994 General Survey on freedom of association and collective bargaining, paragraph 177). The Committee therefore requests the Government to take the necessary measures to repeal the above provision so as to bring the legislation into conformity with the provisions of the Convention and to provide information in its next report on any measure adopted in this respect.

The Committee also notes the indication by ASEMUCH that neither its comments nor those of the Committee have been taken into account and that the draft text of Act No. 18695 setting forth the constitutional framework for municipal authorities, which would abolish the right to strike of municipal officials and affect their rights in terms of stability of employment, training, qualifications and remuneration, has not been amended. The Committee notes the Government’s indication that in 2005 a tripartite working group met, with the participation of representatives of the Government and of ASEMUCH, but that the negotiations broke down. Considering that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158), the Committee requests the Government to continue making every possible effort during the process of consultation on the above draft legislation and to keep it informed of any legislative developments in this connection.

The Committee also recalls that for several years it has been requesting the Government to amend or repeal a number of legislative provisions, or to take steps to secure for certain workers the guarantees afforded by the Convention. The Committee regrets to note that the Government’s report does not contain any information on this subject. More specifically, the Committee requested the Government to:

–      ensure that officials of the judiciary are afforded the guarantees set forth in the Convention;

–      amend article 23 of the Political Constitution which provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for trade union officials who participate in party political activities;

–      amend sections 372 and 373 of the Labour Code, under which an absolute majority of the workers of the enterprise is required for a decision to strike;

–      amend section 374 of the Labour Code, under which a strike must be carried out within three days of the decision to call it, otherwise the workers of the enterprise concerned shall be deemed to have refrained from going on strike and so accept the employer’s final offer;

–      amend section 379 of the Labour Code which provides that at any time the group of workers concerned by the negotiations may be called upon to vote, by at least 20 per cent of them, for the purpose of taking a decision, by absolute majority, to censure the negotiating committee, in which case a new committee shall be elected forthwith;

–      amend section 381 of the Labour Code containing a general prohibition on the replacement of striking workers, but which provides for the possibility of such replacement subject to compliance by the employer with certain conditions in the final offer during the negotiating process;

–      amend section 384 of the Labour Code which provides that strikes may not be called by workers in enterprises which provide public utility services or services the interruption of which would seriously endanger the health, public supply, the national economy or national security (the third paragraph of section 384 provides that, in such cases, if no agreement is reached between the parties to the bargaining, the matter shall be referred to compulsory arbitration). The Committee noted that the definition of services in which strikes may be prohibited, as set out in section 384, as well as the list drawn up by the government authorities, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (for example, port enterprises, the Central Bank and the railway);

–      amend or repeal section 385 of the Labour Code which provides that, in the event of a strike which by its nature, timing or duration causes a serious risk to health, the supply of goods or services to the population, the national economy or national security, the President of the Republic may order the resumption of work;

–      amend section 254 of the Penal Code which provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees; and

–      amend section 48 of Act No. 19296 which grants broad powers to the Directorate of Labour for supervision of the accounts and financial and property transactions of associations.

The Committee hopes that the Government will take all the necessary measures to amend the legislation so as to bring it into full conformity with the provisions of the Convention and requests it to provide information in its next report on any measure adopted in this respect.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report has not been received. In its previous comments, the Committee asked the Government to amend or repeal a number of legislative provisions, or to take steps to secure for certain workers the guarantees afforded by the Convention. Specifically, it asked the Government to:

-  ensure that officials of the judiciary are afforded the guarantees set forth in the Convention;

-  amend article 23 of the Political Constitution which provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for trade union officials who participate in party political activities;

-  amend sections 372 and 373 of the Labour Code, under which an absolute majority of the workers of the enterprise is required for a decision to strike;

-  amend section 374 of the Labour Code, under which a strike must be carried out within three days of the decision to call it, otherwise the workers of the enterprise concerned shall be deemed to have refrained from going on strike and so accept the employer’s final offer;

-  amend section 379 of the Labour Code which provides that at any time the group of workers concerned by the negotiations may be called upon to a vote, by at least 20 per cent of them, for the purpose of taking a decision, by absolute majority, to censure the negotiating committee, in which case a new committee shall be elected forthwith;

-  amend section 381 of the Labour Code containing a general prohibition on the replacement of striking workers, but which provides for the possibility of such replacement subject to compliance by the employer with certain conditions in the final offer during the negotiating process;

-  amend section 384 of the Labour Code which provides that strikes may not be called by workers in enterprises which supply public utility services or services the interruption of which would seriously endanger health, public supply, the national economy or national security (the third paragraph of section 384 provides that, in such cases, if no agreement is reached between the parties to the bargaining, the matter shall be referred to compulsory arbitration). The Committee noted that the definition of services in which strikes may be prohibited, as set out in section 384, as well as the list drawn up by the government authorities, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (for example, port enterprises, the Central Bank and the railway);

-  amend or repeal section 385 of the Labour Code which provides that, in the event of a strike which by its nature, timing or duration causes a serious risk to health, the supply of goods or services to the population, the national economy or national security, the President of the Republic may order the resumption of work;

-  amend section 254 of the Penal Code which provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees;

-  amend section 48 of Act No. 19296 which grants broad powers to the Directorate of Labour for supervision of the accounts and financial and property transactions of associations.

The Committee hopes that the Government will take the steps called for by these comments and asks it to provide information in its next report on all measures it has adopted.

Lastly, the Committee reminds the Government that the National Confederation of Municipal Workers of Chile (ASEMUCH) sent comments on 6 June 2003 and 13 October 2004 on the application of the Convention. In its comments, ASEMUCH referred to the authorities’ intention to table a draft reform of Act No. 18695 setting forth the constitutional framework for municipal authorities, which would abolish the right to strike of municipal officials and affect officials’ rights in terms of stability of employment, training, qualifications and remuneration. The Committee notes that according to the Government: (1) there are no laws or regulations that are inconsistent with the Convention, there was merely an exchange of views at a meeting of the Technical Bureau made up of representatives of the Government and of ASEMUCH, which had been convened for an exchange of views, ideas and proposals on the content of the regulations to govern the new powers granted by the Constitution to 350 municipalities; (2) in the Technical Bureau, the Government representatives presented a minute containing the basis for participation by workers in the definition of employment conditions at municipality level, based on the prescriptions of Convention No. 151; (3) the minute is of no legal relevance, having none of the characteristics of laws or regulations, and is a memo of the basic ideas for participation by municipal workers in determining working conditions in the various communes; and (4) the Government has embarked on studying and preparing a Bill to regulate the authority granted by article 110 of the Constitution to all municipalities in the country. The Bill has not been finalized and so has not been sent to the National Congress for enactment. The Committee again reminds the Government that the right to strike is an intrinsic corollary of freedom of association protected by Convention No. 87. This right is not, however, absolute and may be restricted in exceptional circumstances or even prohibited for certain categories of workers, in particular certain public servants (those exercising authority in the name of the State) or workers providing essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 179). In these circumstances, the Committee considers that municipal officials who do not exercise authority in the name of the State should enjoy the right to strike. It requests that the Government consult with the trade unions concerned if it intends to adopt the abovementioned Bill.

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

The Committee notes the Government’s observations with regard to the comments made by the National Confederation of Municipal Employees of Chile (ASEMUCH). The Committee also notes a communication dated 13 October 2004, in which ASEMUCH sends new comments.

The Committee intends to examine this information and the other pending issues raised by the Committee in its previous direct request (see 2003 direct request, 74th Session) in the context of the regular reporting cycle in 2005.

The Committee also notes the comments made by the National Inter-Company Trade Union of Metallurgy, Communications, Energy and Related Activities Workers (SME) in a communication dated 2 May 2004 concerning the application of the Convention, as well as the Government’s observations in this regard, and points out that these communications concern Convention No. 98 and are examined under this Convention.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report.

Article 2 of the Convention. The Committee notes the indication in the Government’s report on the application of Convention No. 98 that officials in the judicial authorities continue to be governed by special conditions of service which prohibit them from establishing trade union organizations. The Committee recalls that Article 2 of the Convention provides that workers and employers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing and that, under the terms of Article 9 of the Convention, only the members of the armed forces and the police may be excluded from its scope of application. Under these conditions, the Committee requests the Government to take measures to ensure that officials of the judicial authorities are afforded the guarantees set forth in the Convention. The Committee requests the Government to provide information in its next report on any measures adopted for this purpose.

Article 3. 1. Right to elect representatives in full freedom. In its previous direct request, the Committee noted that article 23 of the Political Constitution provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for those trade union officials who participate in party political activities. The Committee notes the Government’s contention that: (1) the constitutional provision seeks to secure greater freedom and independence for trade union organizations; this does not prevent each member of a trade union organization from maintaining political affiliation, provided that this does not affect her or his activities within the organization; and (2) section 236 of the Labour Code provides that to stand for and hold office as a trade union delegate it is necessary to comply with the requirements set out in the respective rules, with the result that the eligibility requirements are established by the trade union organizations themselves. In this respect, the Committee considers that article 23 of the Political Constitution may establish obstacles in such a way that certain persons are deprived of the right to be elected to trade union office solely because of their political beliefs or affiliation and that it should be the trade unions themselves which regulate such questions in their rules. In these conditions, the Committee requests the Government to take measures to amend the above constitutional provision so as to bring it into full conformity with the Convention. The Committee requests the Government to provide information in its next report on any measure adopted to this end.

The Committee also referred previously to section 18 of Act No. 19296 on civil servants’ associations, which provides that a candidate for union leadership must not have been convicted of a serious offence (pena aflictiva). The Committee notes the Government’s indication that section 18 of the above Act was amended by Act No. 19806 of 31 May 2002, with the deletion of the words "nor to have been tried in a court of law" (ni hallarse procesado).

2. Right to organize their administration and activities and to formulate their programmes. The Committee noted previously that sections 372 and 373 of the Labour Code provide that: (1) all the workers in the enterprise involved in the negotiations shall have the right to participate in the ballot to decide on strike action; (2) the employer shall inform all the workers concerned of the final offer; (3) in the ballot, the workers shall vote in favour of the strike or in favour of accepting the employer’s offer; (4) the decision to strike shall be taken by an absolute majority of the workers in the respective enterprise; and (5) if this proportion is not attained, it shall be understood that the workers accept the employer’s final offer made during the negotiations. The Committee notes the Government’s indication that: (1) the administrative case law of the Directorate of Labour has repeatedly found that in the ballot on the last offer of the employer or strike action, only those workers involved in the respective process and who are under the obligation to work at the time are obliged to participate, thereby excluding from this group such workers as are on medical leave, holiday or who are not engaged in the corresponding shifts; and (2) the legislation is very rigorous and closely regulated with regard to the exercise of the right to strike. In this respect, the Committee recalls once again that legislative provisions that require a vote by workers before a strike can be held must ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). In these conditions, the Committee requests the Government to take measures to amend the above sections of the Labour Code in the sense indicated above and to provide information in its next report on any measure adopted to this end.

The Committee also noted previously that, under the terms of section 374 of the Labour Code, once a decision has been taken to strike, this must be carried out within three days, failing which it shall be understood that the workers in the enterprise concerned have refrained from going on strike and, consequently, accept the employer’s final offer. The Committee pointed out that: (1) the fact that strike action has not been taken within three days should not be taken to mean acceptance of the employer’s proposal by the workers; (2) the proposal must be accepted explicitly by the workers or their representatives; and (3) the workers must not lose their right to strike because they have not taken such action within three days of calling the strike. The Committee notes the Government’s statement that it will take into account these comments in discussions which may be held in future on this point. The Committee requests the Government to inform it in its next report on any measures taken to amend the provision in question.

The Committee noted previously that section 379 of the Labour Code provides that "at any time the group of workers concerned by the negotiations can be called upon to vote, by not less than 20 per cent of them, for the purpose of deciding to censure the negotiating committee, which must be decided upon by the absolute majority, and in which case a new committee shall be elected forthwith." The Committee considered in its previous direct request that this section may give rise to acts of interference with the right of trade unions to organize their activities and that these questions should be dealt with solely by trade union statutes. The Committee notes the Government’s indication that it will bear these comments in mind in any discussions which may be held in future on this point. The Committee requests the Government to provide information in its next report on any measures adopted to amend the above section.

The Committee notes that section 381 of the Labour Code contains a general prohibition on the replacement of striking workers, but that there exists the possibility of their replacement subject to compliance by the employer with certain conditions in the final offer during the negotiating process. The Committee notes the Government’s statement that: (1) it is necessary to bear in mind that the inspection carried out by the Directorate of Labour is intended to ensure that the provision is complied with in its entirety, namely that such replacement can be carried out only by employers who comply with the minimum requirements established; and (2) the interpretation which has been made of this provision by the above inspection service has been very restrictive, in the sense of considering as a legitimate replacement any arrangement in which a worker who provides a replacement performs the same tasks as the worker who is on strike; this has resulted in prohibiting in practice the replacement of workers by students and volunteer workers. Nevertheless, the Committee is bound to recall that the replacement of strikers seriously impairs the right to strike and affects the free exercise of trade union rights (see General Survey, op. cit., paragraph 175) and it requests the Government to amend the legislation to ensure that enterprises cannot hire new workers to replace those who are engaged in a lawful strike.

The Committee also commented on section 384 of the Labour Code, which provides that strikes cannot be called by workers in enterprises which supply public utility services or those the interruption of which would seriously endanger the health, public supply, the national economy or national security. In such cases, the abovementioned article provides that if agreement is not reached between the parties during the collective bargaining process, the matter shall be referred to compulsory arbitration. The Committee notes the Government’s indication that: (1) in July the Ministries of Labour and Social Insurance, the Economy, Energy and Mining and National Defence drew up a list of enterprises in which, although the workers may engage in collective bargaining, they may not call a strike and the process of negotiation is therefore subject to compulsory arbitration; and (2) the list of enterprises in the above situation consists almost entirely of enterprises which provide essential public services such as gas, electricity, health services, enterprises in ports and others of a strategic nature, such as the Central Bank and the Postal Services of Chile, as well as the Arica-La Paz rail connection, under the terms of an agreement concluded with Bolivia. In this respect, the Committee recalls that the right to strike is an intrinsic corollary of freedom of association protected by Convention No. 87. This right is not, however, absolute and may be restricted in exceptional circumstances or even prohibited for certain categories of workers, in particular certain public servants (those exercising authority in the name of the State) or workers providing essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) (see General Survey, op. cit., paragraph 179). The Committee considers that the definition of services in which strikes may be prohibited, as set out in section 384, as well as the list drawn up by the government authorities in July, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (for example, port enterprises, the Central Bank and the railway). In these conditions, the Committee requests the Government to take measures to amend the law and practice in the sense indicated above and to provide information in its next report on any measures adopted to this end.

The Committee also noted that section 385 of the Labour Code provides that in the event of a strike which by its nature, timing or duration causes a serious risk to the health, the supply of goods or services to the population, to the national economy or national security, the President of the Republic may order the resumption of work. The Committee notes the Government’s statement that: (1) despite the existence of this legal provision, the President of the Republic has not had recourse to it for the past 25 years, as the most sensitive collective bargaining processes have been resolved through direct dialogue between the parties or with the intervention of the administrative authorities to bring the parties closer; (2) under the terms of section 385, for the President of the Republic to order the resumption of work in general or in a specific service, there has to be a situation of national crisis caused by the interruption of services which affects the life, personal safety or health of the whole or part of the population, when the strike causes serious harm to health, the supply of goods and services to the population, the economy of the country or national security; (3) the workers concerned by the resumption of work are covered by the procedures of conciliation, mediation and arbitration; and (4) the arbitrator is designated from the list of independent persons established previously, with their fees being covered by the State. In this respect, the Committee considers that the definition contained in section 385 of services in which the President of the Republic may order the resumption of work appears to go beyond essential services in the strict meaning of the term. Taking into account the fact that, according to the Government, the President of the Republic has not had recourse to this prerogative for 25 years, the Committee requests the Government to take measures to repeal or amend the provision in question as indicated above.

The Committee also noted that section 254 of the Penal Code provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees. The Committee notes the Government’s statement that the above provision does not set forth sanctions for the exercise of the right to strike, but for the interruption of public services or public utilities where such interruption is unlawful, untimely and clearly harmful to users and the country. In this respect, the Committee considers that a strike may be declared illegal by virtue of certain of the legislative provisions commented on in the paragraphs above and that this could result in the imposition of the sanctions envisaged in the Penal Code. In these conditions, the Committee requests the Government to take measures to amend section 254 of the Penal Code. The Committee requests the Government to provide information in its next report on any measures adopted to this end.

The Committee also noted that section 48 of Act No. 19296 grants broad powers to the Directorate of Labour for the supervision of the accounts and financial and property transactions of associations. The Committee notes the Government’s statement that a provision similar to the above (section 265 of the Labour Code) was repealed on the grounds of the need to grant trade union organizations greater freedom and independence. The Committee requests the Government, in the same way as for the repealed provision of the Labour Code, to take measures to amend section 48 of Act No. 19296 to limit the powers of supervision of the Directorate of Labour.

Finally, the Committee notes the comments of the National Confederation of Municipal Workers of Chile (ASEMUCH), dated 6 June 2003, on the application of the Convention. The Committee regrets that the Government has not provided its observations in this respect. The Committee notes that ASEMUCH refers to the authorities’ intention to table a draft reform of Act No. 18695 setting forth the constitutional framework for municipal authorities, which would abolish the right to strike of municipal officials. In this connection, the Committee refers to its comments in the above paragraphs on the categories of workers for whom the exercise of the right to strike may be restricted or even prohibited. The Committee considers that municipal officials who do not exercise authority in the name of the State should enjoy the right to strike.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

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 matters raised in its previous direct request, which read as follows:

The Committee requests the Government to confirm the entry into force of the amendments of the Labour Code approved by Congress on 11 September 2001.

With regard to labour legislation, the Committee requests the Government to provide clarification on the validity and scope of certain provisions. The Committee refers specifically to the Administrative Statute (Act No. 18834), particularly in regard to section 78, and the Legislative Decree on trade union associations (No. 2757). Furthermore, the Committee requests the Government to furnish information on any other legislation applicable on this subject.

  Article 3 of the Convention

1. The right to elect representatives in full freedom. The Committee observes that section 23 of the Political Constitution provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for those officials who participate in party political activities. In this respect, the Committee recalls that the provisions which prohibit the exercise of trade union office to certain persons because of their opinions or their political affiliation are not compatible with the right of organizations to elect their representatives freely. These are, essentially, provisions concerning eligibility for trade union office on political grounds which relate to the activities of the specific party or political movement (see General Survey on freedom of association and collective bargaining, 1994, paragraph 119). The Committee deems that section 23 may lay down obstacles in such a way that certain persons are deprived of the right to be elected to trade union office solely because of their political beliefs or affiliation and that it should be the trade unions themselves which regulate such questions in their statutes. Consequently, the Committee requests the Government to take measures to amend this constitutional provision so as to bring it into conformity with the provisions of the Convention.

Section 18 of Act No. 19.296 on civil servants’ associations lays down that a candidate for union leadership must not have been convicted of a serious offence (pena aflictiva). The Committee considers that these terms are too broad and that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey, paragraph 120). The Committee requests the Government to clarify the extension of the concept of "pena aflictiva" in practice and to what extent it affects workers in standing as candidates for trade union elections.

2. The right to organize their administration and activities and to formulate their programmes. The Committee observes that section 218 of the Labour Code lays down that labour inspectors, public notaries, civil registry officials and officials of the state administration designated as such by the Directorate of Labour shall be officials authorized to authenticate documents. Public notaries shall be present at constituent assemblies of trade union organizations, elections of their officials, votes of censure on officials, and at assemblies convened to decide on amendment of their statute, inter alia. The Committee considers that this is contrary to the right of trade union organizations to organize freely their administration and activities and therefore requests the Government to take the necessary measures, in conformity with Article 3 of the Convention, to ensure that the public authorities refrain from interfering in meetings of trade union organizations.

The Committee also notes sections 370 and 371 of the Labour Code which refer to the right to strike only when collective negotiation procedures have broken down and only at enterprise level. In this respect, the Committee considers that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey, paragraph 165). Furthermore, workers should be able to conduct sympathy strikes, provided the initial strike they are supporting is itself lawful (see General Survey, paragraph 168). The Committee therefore requests that the Government indicate whether it is permissible to carry out actions beyond those envisaged in the framework of collective disputes at the level of the enterprise, such as strikes at national or inter-enterprise level for socio-economic or solidarity reasons, without sanctions being incurred by those participating. Furthermore, the Committee would be grateful to know whether federations and confederations may conduct strikes without being sanctioned for them.

The Committee notes that sections 372 and 373 provide that voting to decide on strike action shall be personal, secret and in the presence of a public notary and that all workers in the undertaking involved in the bargaining may take part. The employer shall inform all workers concerned of the final offer and shall supply a copy of the offer to the Labour Inspectorate. In the ballot, workers shall vote in favour of the strike or in favour of accepting the employer’s offer by means of pre-printed voting slips. The decision to strike shall be taken by an absolute majority of workers of the particular undertaking involved in the negotiations. If this proportion is not reached, it will be understood that the workers accept the employer’s final offer. In this regard, the Committee recalls that the legislative provisions which require a vote by workers before a strike can be held must ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, paragraph 170). Furthermore, the Committee considers that acceptance of the employer’s proposal by the workers cannot be implied, as provided in section 373, by the lack of a quorum in voting to take strike action. In fact, the Committee considers that such acceptance must be made expressly by workers or by the representatives involved in the negotiations. The Committee requests that the Government take measures to amend these provisions by eliminating the presumption of acceptance of the strike in the event of lack of a quorum and by ensuring that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level.

The Committee notes that section 374 lays down that once a decision has been taken to strike, this must be carried out within three days otherwise it will be understood that the workers of the undertaking concerned have refrained from striking and, consequently, have accepted the employer’s final offer. On the same lines as the previous point, the Committee considers that the fact that strike action has not been taken within three days should not signify acceptance of the employer’s proposal by the workers. The proposal must be accepted expressly by the workers or their representatives. In addition, the workers must not lose their right to strike because they have not taken such action within three days of declaring it. The Committee requests the Government to take measures to repeal this section which places unnecessary restrictions on the right to strike and the right of trade unions to organize their activities.

The Committee notes that section 379 provides that at any time the group of workers involved in the negotiation can be called to vote by not less that 20 per cent of them for the purpose of deciding on censure of the negotiating committee, which must be decided by the absolute majority, in which case a new committee is elected at once. The Committee considers that this section may give rise to acts of interference in the right of trade union organizations to organize their activities and that these questions should be dealt with solely by trade union statutes. The Committee requests that the Government indicate the measures taken or envisaged to repeal this section.

The Committee notes that section 381 currently in force prohibits in a general way the replacement of strikers. Nevertheless, it observes that the possibility of replacing them remains, subject to certain conditions. Section 381 requires, in addition to the already existing conditions, provision for payment of a premium for strike replacements which makes recruitment of new workers more expensive for the employer. Nevertheless, the Committee recalls that replacement of strikers seriously impairs the right to strike and affects the free exercise of trade union rights (see General Survey, paragraph 175). The Committee requests that the Government amend its legislation to ensure that undertakings cannot recruit new workers to replace their own employees who are on legal strike.

The Committee notes that section 384 provides that striking is forbidden for workers of undertakings which supply public utility services or those the interruption of which would seriously endanger the health, public supply, the economy of the country or national security. In these cases, section 384(3) provides that if agreement is not reached between the parties during the collective bargaining process, compulsory arbitration will take place. In this respect, the Committee recalls that legislation may prohibit strike action and impose compulsory arbitration in the following cases: first, in undertakings or institutions which provide essential services, in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and secondly, in regard to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraphs 158-159). The Committee observes in this regard that current legislation is excessively broad since the concept of public utility and damage to the country’s economy go beyond the concept of essential service. Nevertheless, the Committee considers that in the case of non-essential services, for the purpose of avoiding damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or the consumers who suffer the economic effect of the collective dispute, the authorities could establish a system of minimum service in other public services rather than imposing an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey, paragraph 160).

The Committee also notes that section 385 provides that where there is a strike which by its nature, timing or duration causes a serious risk to the health, to the supply of goods and services to the population, to the economy of the country or to national security, the President of the Republic can order the resumption of work. In this regard, the Committee considers that it should be the judicial authorities, at the request of the administrative authorities, which order resumption of work only in cases of acute national crisis or where the interruption of services would endanger the life, personal safety or health of the whole or part of the population, providing in such cases that workers enjoy adequate compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see General Survey, paragraph 164). Finally, the Committee notes that section 254 of the Penal Code lays down penal sanctions in the event of interruption of public services or public utilities or abandonment of post by public employees. In this respect, the Committee recalls that the sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey, paragraph 177). The Committee therefore requests the Government to take measures so that legislation will allow the prohibition or restriction of the right to strike only in case of essential services or public servants exercising authority in the name of the State or in the event of acute national crisis. The Committee also requests the Government to amend section 385 so that it is the judicial authorities which determine resumption of work and that appropriate compensatory guarantees are provided in such cases. Finally, the Committee requests the Government to take measures to amend section 254 of the Penal Code in regard to sanctions on the exercise of the right to strike which should be restricted to essential services, to public servants exercising authority in the name of the State and to cases of acute national crises, in accordance with the abovementioned principle.

The Committee notes that section 48 of Act No. 19296 grants broad powers to the Directorate of Labour in supervision of the books and financial and property transactions of associations. In this regard, the Committee recalls that such supervision should be limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (see General Survey, paragraph 125). The Committee requests the Government to modify this section in order to restrict the powers of the Directorate of Labour, in conformity with the provisions of Article 3 of the Convention.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes with interest the report sent by the Government as well as the recent amendment of the Labour Code approved by Congress on 11 September 2001. In this regard, the Committee requests the Government to confirm the entry into force of the abovementioned instrument.

With regard to labour legislation, the Committee requests the Government to provide clarification on the validity and scope of certain provisions. The Committee refers specifically to the Administrative Statute (Act No. 18834), particularly in regard to section 78, and the Legislative Decree on trade union associations (No. 2757). Furthermore, the Committee requests the Government to furnish information on any other legislation applicable on this subject.

Article 3 of the Convention

1. The right to elect representatives in full freedom. The Committee observes that section 23 of the Political Constitution provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for those officials who participate in party political activities. In this respect, the Committee recalls that the provisions which prohibit the exercise of trade union office to certain persons because of their opinions or their political affiliation are not compatible with the right of organizations to elect their representatives freely. These are, essentially, provisions concerning eligibility for trade union office on political grounds which relate to the activities of the specific party or political movement (see General Survey on freedom of association and collective bargaining, 1994, paragraph 119). The Committee deems that section 23 may lay down obstacles in such a way that certain persons are deprived of the right to be elected to trade union office solely because of their political beliefs or affiliation and that it should be the trade unions themselves which regulate such questions in their statutes. Consequently, the Committee requests the Government to take measures to amend this constitutional provision so as to bring it into conformity with the provisions of the Convention.

Section 18 of Act No. 19.296 on civil servants’ associations lays down that a candidate for union leadership must not have been convicted of a serious offence (pena aflictiva). The Committee considers that these terms are too broad and that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey, paragraph 120). The Committee requests the Government to clarify the extension of the concept of "pena aflictiva" in practice and to what extent it affects workers in standing as candidates for trade union elections.

2. The right to organize their administration and activities and to formulate their programmes. The Committee observes that section 218 of the Labour Code lays down that labour inspectors, public notaries, civil registry officials and officials of the state administration designated as such by the Directorate of Labour shall be officials authorized to authenticate documents. Public notaries shall be present at constituent assemblies of trade union organizations, elections of their officials, votes of censure on officials, and at assemblies convened to decide on amendment of their statute, inter alia. The Committee considers that this is contrary to the right of trade union organizations to organize freely their administration and activities and therefore requests the Government to take the necessary measures, in conformity with Article 3 of the Convention, to ensure that the public authorities refrain from interfering in meetings of trade union organizations.

The Committee also notes sections 370 and 371 of the Labour Code which refer to the right to strike only when collective negotiation procedures have broken down and only at enterprise level. In this respect, the Committee considers that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey, paragraph 165). Furthermore, workers should be able to conduct sympathy strikes, provided the initial strike they are supporting is itself lawful (see General Survey, paragraph 168). The Committee therefore requests that the Government indicate whether it is permissible to carry out actions beyond those envisaged in the framework of collective disputes at the level of the enterprise, such as strikes at national or inter-enterprise level for socio-economic or solidarity reasons, without sanctions being incurred by those participating. Furthermore, the Committee would be grateful to know whether federations and confederations may conduct strikes without being sanctioned for them.

The Committee notes that sections 372 and 373 provide that voting to decide on strike action shall be personal, secret and in the presence of a public notary and that all workers in the undertaking involved in the bargaining may take part. The employer shall inform all workers concerned of the final offer and shall supply a copy of the offer to the Labour Inspectorate. In the ballot, workers shall vote in favour of the strike or in favour of accepting the employer’s offer by means of preprinted voting slips. The decision to strike shall be taken by an absolute majority of workers of the particular undertaking involved in the negotiations. If this proportion is not reached, it will be understood that the workers accept the employer’s final offer. In this regard, the Committee recalls that the legislative provisions which require a vote by workers before a strike can be held must ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, paragraph 170). Furthermore, the Committee considers that acceptance of the employer’s proposal by the workers cannot be implied, as provided in section 373, by the lack of a quorum in voting to take strike action. In fact, the Committee considers that such acceptance must be made expressly by workers or by the representatives involved in the negotiations. The Committee requests that the Government take measures to amend these provisions by eliminating the presumption of acceptance of the strike in the event of lack of a quorum and by ensuring that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level.

The Committee notes that section 374 lays down that once a decision has been taken to strike, this must be carried out within three days otherwise it will be understood that the workers of the undertaking concerned have refrained from striking and, consequently, have accepted the employer’s final offer. On the same lines as the previous point, the Committee considers that the fact that strike action has not been taken within three days should not signify acceptance of the employer’s proposal by the workers. The proposal must be accepted expressly by the workers or their representatives. In addition, the workers must not lose their right to strike because they have not taken such action within three days of declaring it. The Committee requests the Government to take measures to repeal this section which places unnecessary restrictions on the right to strike and the right of trade unions to organize their activities.

The Committee notes that section 379 provides that at any time the group of workers involved in the negotiation can be called to vote by not less that 20 per cent of them for the purpose of deciding on censure of the negotiating committee, which must be decided by the absolute majority, in which case a new committee is elected at once. The Committee considers that this section may give rise to acts of interference in the right of trade union organizations to organize their activities and that these questions should be dealt with solely by trade union statutes. The Committee requests that the Government indicate the measures taken or envisaged to repeal this section.

The Committee notes that section 381 prohibits in a general way the replacement of strikers. Nevertheless, it observes that the possibility of replacing them remains, subject to certain conditions. Section 381 requires, in addition to the already existing conditions, provision for payment of a premium for strike replacements which makes recruitment of new workers more expensive for the employer. Nevertheless, the Committee recalls that replacement of strikers seriously impairs the right to strike and affects the free exercise of trade union rights (see General Survey, paragraph 175). The Committee requests that the Government amend its legislation to ensure that undertakings cannot recruit new workers to replace their own employees who are on legal strike.

The Committee notes that section 384 provides that striking is forbidden for workers of undertakings which supply public utility services or those the interruption of which would seriously endanger the health, public supply, the economy of the country or national security. In these cases, section 384(3) provides that if agreement is not reached between the parties during the collective bargaining process, compulsory arbitration will take place. In this respect, the Committee recalls that legislation may prohibit strike action and impose compulsory arbitration in the following cases: first, in undertakings or institutions which provide essential services, in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and secondly, in regard to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraphs 158-159). The Committee observes in this regard that current legislation is excessively broad since the concept of public utility and damage to the country’s economy go beyond the concept of essential service. Nevertheless, the Committee considers that in the case of non-essential services, for the purpose of avoiding damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or the consumers who suffer the economic effect of the collective dispute, the authorities could establish a system of minimum service in other public services rather than imposing an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey, paragraph 160).

The Committee also notes that section 385 provides that where there is a strike which by its nature, timing or duration causes a serious risk to the health, to the supply of goods and services to the population, to the economy of the country or to national security, the President of the Republic can order the resumption of work. In this regard, the Committee considers that it should be the judicial authorities, at the request of the administrative authorities, which order resumption of work only in cases of acute national crisis or where the interruption of services would endanger the life, personal safety or health of the whole or part of the population, providing in such cases that workers enjoy adequate compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see General Survey, paragraph 164). Finally, the Committee notes that section 254 of the Penal Code lays down penal sanctions in the event of interruption of public services or public utilities or abandonment of post by public employees. In this respect, the Committee recalls that the sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey, paragraph 177). The Committee therefore requests the Government to take measures so that legislation will allow the prohibition or restriction of the right to strike only in case of essential services or public servants exercising authority in the name of the State or in the event of acute national crisis. The Committee also requests the Government to amend section 385 so that it is the judicial authorities which determine resumption of work and that appropriate compensatory guarantees are provided in such cases. Finally, the Committee requests the Government to take measures to amend section 254 of the Penal Code in regard to sanctions on the exercise of the right to strike which should be restricted to essential services, to public servants exercising authority in the name of the State and to cases of acute national crises, in accordance with the abovementioned principle.

The Committee notes that section 48 of Act No. 19296 grants broad powers to the Directorate of Labour in supervision of the books and financial and property transactions of associations. In this regard, the Committee recalls that such supervision should be limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (see General Survey, paragraph 125). The Committee requests the Government to modify this section in order to restrict the powers of the Directorate of Labour, in conformity with the provisions of Article 3 of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the first report sent by the Government along with the comments supplied by the Single Central Organization of Chilean Workers in February 2001 with reference to the Labour Code in force at that time.

The Committee also notes with satisfaction that, between the ratification of the Convention and the sending of the first report, the National Congress has amended the Labour Code to provide improved application of the Convention. Specifically, through the amendments made to the Labour Code, the scope of application of the right to organize has broadened, the number of persons required in order to establish trade unions has decreased, certain conditions for trade union leadership eligibility have been abolished and the power of the authorities to interfere in trade union organizations has been reduced.

In addition, the Committee is raising a number of matters in relation to the application of the Convention in a direct request.