Report in which the committee requests to be kept informed of development - Report No 326, November 2001

Case No 2135 (Chile) - Complaint date: 22-JAN-01 - Closed

Allegations: Prohibition of the right to strike in an enterprise

1. 245. The complaint is contained in a communication dated 22 January 2001 from Trade Union No. 1, Metropolitan Sanitation Company, Trade Union No. 2, Metropolitan Sanitation Company, and the Professional and Technical Employees’ Trade Union of the Metropolitan Sanitation Company.
2. 246. The Government sent its observations in a communication dated 13 August 2001.
3. 247. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 248. In their communication of 22 January 2001, Trade Union No. 1, Metropolitan Sanitation Company, Trade Union No. 2, Metropolitan Sanitation Company, and the Professional and Technical Employees’ Trade Union of the Metropolitan Sanitation Company state that in resolution No. 71 of 21 July 2000, published on 14 August 2000, the Ministry of the Economy, Public Works and Reconstruction, in collaboration with the Ministries of Defence and of Labour and Social Security have included the Metropolitan Sanitation Company (EMOS S.A.) in the list of companies falling into the categories referred to in article 384 of the Labour Code which provides the possibility of prohibiting a strike and referring conflicts to compulsory arbitration, in particular, for those companies the interruption of the services of which would endanger the health or provision of services to the population.
2. 249. The resolution implies that all workers in the company will be affected by the prohibition to strike and will be obliged, in the case of a labour dispute, to have recourse to compulsory arbitration.
3. 250. The complainant acknowledges that the production and distribution of drinking water and the collection and treatment of waste water that is carried out by EMOS S.A. for those living in the metropolitan area can and should be registered as essential services, inasmuch as they involve the life and health of the population.
4. 251. However, EMOS S.A. is involved in providing services other than these essential services that are clearly distinct from the latter, as are all the purely administrative services. Among those services which remain purely administrative should be mentioned, for example, those relating to legal advice (public prosecution), design projects, construction planning and works inspection, information technology, logistics, property registration, archiving, library services, public relations, infrastructure management, commercial management, financial management and administration, human resources, etc. Furthermore, in those sections dealing with production, and distribution of drinking water and collection and treatment of waste water there are professional, technical and administrative personnel whose jobs have nothing to do with the production of essential services.
5. 252. The complainants believe that the right to strike should be prohibited only for those workers who are directly involved in essential services and not for the workers whose jobs do not encompass essential services and whose strike action would not prevent the company from fulfilling its obligation to provide essential services.

B. The Government’s reply

1. 253. In a communication dated 13 August 2001, the Government states that there are certain restrictions to the right to strike in Chilean legislation, the most relevant being when this right is prohibited.
2. 254. This prohibition is to be found in article 19, No. 16, of the Political Constitution of the Republic and in article 384 of the Labour Code, the latter of which provides that some workers who may bargain collectively may not call a strike. The workers concerned include those who work in certain companies decided upon on a yearly basis under the joint resolution issued by the Ministries of National Defence, Economy, Public Works and Reconstruction, and Labour, to which the complainants refer.
3. 255. This restriction to a constitutional right, as the right to strike should be, as such narrowly interpreted and therefore applicable only to those companies:
   • – which are public utilities;
   • – where a stoppage in services would seriously endanger health;
   • – where a strike would acutely affect the provision of essential services to the population;
   • – where a stoppage would mean that the economy of the country was endangered; and
   • – where a stoppage would seriously endanger national security.
4. 256. With regard to these criteria it should be mentioned that since 1990, democratic governments have gradually reduced the original list, trying to ensure that the restrictions are imposed only on those companies that effectively provide essential services, such as those mentioned in the previous paragraph.
5. 257. Furthermore, there is currently a series of labour reforms being carried out that will bring the country’s labour legislation closer to that which is laid down in Conventions Nos. 87 and 98 on freedom of association and collective bargaining.
6. 258. With regard to the rest, the description previously mentioned conforms with that laid down by the ILO Committee on Freedom of Association, which states that “to determine situations in which a strike could be prohibited, the criteria which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population”.
7. 259. In this context the ILO has listed those services that, in its opinion, can be considered essential. These include the hospital sector, electricity services, water supply services, the telephone service and air traffic control.
8. 260. Therefore, the ILO itself lists among the services that it considers to be essential services related to water supply, which is the case of the Metropolitan Sanitation Company which, without a shadow of a doubt, does supply an essential service.
9. 261. Given the previous information, it should also be pointed out that the constitutional provision previously quoted expressly states in its final paragraph that public service employees shall not declare strike action. Neither shall those persons working in corporations or companies, whatever their category, purpose or function, that provide essential services to the public or whose stoppage would seriously endanger the health of the population, the economy of the country, the provision of essential services to the population or national security. The law lays down procedures available to those corporations or companies whose workers are subject to that prohibition.
10. 262. Under constitutional law, this prohibition applies to the company in its entirety and, therefore, to all those working at that company. These workers may have recourse to compulsory arbitration, a procedure that replaces the right to strike.
11. 263. Finally, the Government states that further investigation is needed as regards the claim presented by the complainants, in which the different sections or duties that are carried out within the company be defined so that only those workers who are directly linked to the provision of the essential service be subjected to that prohibition; that investigation shall be carried out by the Ministry of Labour and Social Security as soon as possible.

C. The Committee’s conclusions

1. 264. The Committee observes that in the present complaint the complainants dispute that resolution No. 71 of 21 July 2000, issued by the Ministry of the Economy, Public Works and Reconstruction, should prohibit the right to strike not only for those workers at the Metropolitan Sanitation Company who are providing an essential service, but also for those who are involved in areas that are clearly separate from the provision of essential services, such as administrative tasks, legal advice, design projects, planning, construction and works inspection, information technology and others.
2. 265. The Committee notes that the Government states that water supply services are an essential service.
3. 266. The Committee recalls that “the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population)” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 526].
4. 267. The Committee also recalls that water supply services are an essential service where the right to strike may be prohibited with adequate protection to compensate for this limitation [see Digest, op. cit., paras. 544 and 546]. The Committee notes, however, that the Government states that further investigation is needed as regards the claim presented by the complainants, in which the different sections or duties that are carried out within the company be defined so that only those workers who are directly linked to the provision of the essential service be subjected to the prohibition of the right to strike; that investigation shall be carried out by the Ministry of Labour and Social Security as soon as possible. The Committee appreciates and encourages this initiative; it hopes that this investigation will be carried out very shortly and requests the Government to keep it informed in this regard.

The Committee's recommendations

1. 268. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee notes that the Government states that further investigation is needed as regards the claim presented by the complainants, in which the different sections or duties that are carried out within the company be defined so that only those workers who are directly linked to the provision of the essential service be subjected to the prohibition of the right to strike; that investigation shall be carried out by the Ministry of Labour and Social Security as soon as possible. The Committee appreciates and encourages this initiative; it hopes that this investigation will be carried out very shortly and requests the Government to keep it informed in this regard.