Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Chili (Ratification: 1999)

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Article 4 of the Convention. Promotion of collective bargaining. Level of collective bargaining. Inter-enterprise unions. In its previous comment, the Committee noted that the labour reform maintains collective bargaining that is binding (“regulated”) at the enterprise level and that at higher levels collective bargaining remains voluntary, and confederations and federations can submit draft collective agreements and initiate negotiations regulated by the Labour Code. The Committee invited the Government to engage in social dialogue with a view to agreeing on solutions to encourage the full development and utilization of collective bargaining procedures at the various levels and to report on the impact of the application of the labour reform on the exercise of collective bargaining. The Committee notes the Government’s indication that: (i) inter-enterprise unions may initiate collective bargaining with an enterprise under the unregulated procedure (section 314 of the Labour Code, or in accordance with the regulated procedure (section 364 of the Labour Code; and that (ii) to bargain under the regulated procedure, the inter-enterprise union shall fulfil two criteria: the union’s members shall be employed by enterprises of the same category or economic sector and shall have the number of members indicated in section 227 of the Labour Code (in the case of a medium-sized or large enterprise (more than 50 workers)), the union shall include in its membership a minimum of 25 workers who shall represent at least ten per cent of all workers in the enterprise; and in the case of a micro or small enterprise (50 or fewer workers), the inter-enterprise union shall include in its membership a minimum of eight workers who shall represent at least 50 per cent of all workers in the enterprise). With regard to the allegations related to the collective bargaining system for inter-enterprise unions in respect of micro or small enterprises set out in section 364 of the Labour Code, the Government indicates that if, after a period of ten days, the enterprise does not notify acceptance or refusal to engage in bargaining, the Directorate for Labour doctrine provides that the members of an inter-enterprise union may submit a draft collective agreement and initiate collective bargaining under the regulated procedure. The Committee takes note of this information, and also that the Government provides statistical data regarding bargaining conducted between July 2019 and June 2023, which show that in that period: (i) 11,633 collective agreements were concluded, covering a total of 1,573,092 workers; and (ii) among these, inter-enterprise unions concluded 1,635 collective agreements, covering a total of 308,086 workers. The Committee observes that the information provided does not reveal the number of collective agreements concluded at the various levels and sectors. The Committee also observes that less than 15 per cent of the total number of collective agreements were negotiated by inter-enterprise unions. In light of the above, the Committee requests the Government to provide information on the measures taken or envisaged to promote collective bargaining in all sectors and at all levels. It also requests the Government to provide detailed statistical information on the number of collective agreements adopted by level and sector, particularly comparing the enterprise level and higher levels, and the number of workers covered.

Apprentices and occasional and temporary workers and workers engaged for a temporary task or activity. The Committee took note of the information on the rules governing collective bargaining for apprentices and occasional and temporary workers and workers engaged on a temporary task or activity, and observed that, although following the labour reform, between 2017 and 2019 there were seven bargaining processes covering occasional and temporary workers and workers engaged on a temporary task or activity, and that no collective instruments had resulted from those processes. The Committee observes that the Government refers to the sections of the Labour Code that regulate collective bargaining for temporary workers and workers engaged on a temporary task or activity. The Committee notes these indications and again requests the Government to report on measures taken or envisaged to promote collective bargaining for apprentices and occasional workers and workers engaged on a temporary task or activity in all sectors and types of enterprise in the country, indicating in addition whether negotiation processes have been concluded and/or collective agreements have been signed.

Education sector. After observing that the trade union rights of education assistants is determined in accordance with the system in force for civil servants, the Committee on Freedom of Association drew attention to the importance of promoting collective bargaining, as set out in Article 4 of the Convention, in the education sector (see the 388th report of the CFA, 2019, Cases Nos 3246 and 3247, paragraph 285). Taking the above into account, the Committee requested the Government to provide information on the promotion of collective bargaining in the education sector, in particular as regards education assistants. The Committee notes that the Government indicates that: (i) educational assistants working in the privately financed or subsidized sector are governed by the Labour Code and have the right to bargain collectively; (ii) education assistants who work directly for a municipality are considered to be public servants engaged in the administration of the State, and are prohibited from regulated bargaining under section 304 of the Labour Code, however, in respect of education assistants who work for a municipal corporation, the right to engage in collective bargaining is expressly recognized in section 14 of Act No. 19.464; and (iii) education assistants employed in the local education services are governed by the Statute for education assistants, and are also prohibited from regulated bargaining under section 304 of the Labour Code. The Committee also takes due note that, according to the Government, although collective bargaining is expressly prohibited for the public sector, by virtue of the legislation (Labour Code), which has authority to limit this fundamental right under the Political Constitution of the Republic, in practice associations of public sector officials have however periodically entered into negotiations with the Executive. While noting these indications, the Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. This second category of public employees includes, for instance, municipal employees and public sector teachers, whether or not they are considered in national law as belonging to the category of public servants (see the General Survey on fundamental Conventions, 2012, paragraph 172). Committee refers to its comments in respect of Convention No. 151 in which it invites the Government to adopt the necessary legislative reforms to ensure a stable legislative framework for collective bargaining. It further requests the Government to take the necessary measures to ensure that the guarantees provided by the Convention are applicable to public sector municipal workers and teachers.