Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Chile (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.

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The Committee notes with regret that the Government has not responded to multiple observations from the social partners regarding the application of the Convention in law and practice sent in 2016, 2019 and 2020. The Committee again requests the Government to transmit its comments without delay.

Article 1 of the Convention. Anti-union discrimination. In its previous comments, the Committee noted assertions from trade union organizations that the system of protection against anti-union discrimination is still ineffective and not dissuasive (indicating, for example, that the maximum penalty of 300 monthly tax units is not dissuasive for a multinational enterprise). In light the above, the Committee invited the Government to engage in dialogue with the most representative organizations on the evaluation of the system of protection against anti-union discrimination. The Committee notes the Government’s indication that between July 2019 and June 2023, 3463 complaints of unfair and anti-union practices were lodged with the Directorate for Labour, of which 520 were for obstructing the formation or functioning of trade unions, applying pressure through threatening the loss of employment or benefits; 378 complaints for failing to give agreed employment to a trade union leader; 344 for unlawful dismissal of workers covered by trade union immunity; and 335 for acts of interference. The Committee notes that the Directorate for Labour maintains a register of convictions for unfair or anti-union practices and publishes the list of enterprises and trade union organizations convicted of infringements twice yearly. It observes that, according to the register, between the second half of 2020 and the first quarter of 2023, fines were imposed on nearly 100 enterprises. The fines varied from between 5 and 920 Monthly Tax Units (approximately equal to US$367 and US$67,000), and the highest penalty was imposed on one single occasion on an enterprise for unfair practices in collective bargaining. With respect to the request to the Government to engage in dialogue with the most representative organizations on the evaluation of the system of protection against anti-union discrimination, the Government indicates that Department for Social Dialogue of the Undersecretariat of Labour administers the Trade Union and Cooperative Labour Relations Fund, established by Act 20940, the aim of which is to finance projects, programmes and activities in respect of trade union training, promotion of social dialogue and the development of cooperative labour relations between employers and workers, including a programme designed for trade union leaders conducted in 2023. The Government also indicates that since 2006, the Department of Social Dialogue has been implementing the “Mesas de Diálogo Social” (Social Dialogue Roundtables) programme, in which the representatives of workers and employers take up issues related to employment and labour relations. The Committee requests the Government to continue providing statistical information related to acts of trade union discrimination denounced to the authorities. While encouraging any initiative aimed at strengthening social dialogue, the Committee requests that the Government, within the framework of the existing spaces for social dialogue, take up in a direct and effective manner, the concerns expressed previously by the trade union organizations as well as any other concern related to existing protection systems against trade union discrimination.

Article 4. Promotion of collective bargaining. Workers’ organizations and negotiating groups. The Committee noted that: (i) in a ruling of 2016, the Constitutional Court found that it would be unconstitutional to provide that workers can only negotiate through unions, considering that, in accordance with the Chilean Constitution, collective bargaining is the right of each and every worker; (ii) the Directorate for Labour issued Opinion No. 3938/33 of 2018, indicating that agreements concluded by negotiating groups (groups of non-unionized workers coming together for the purpose of bargaining) constitute collective agreements recognized by the Labour Code; and (iii) while an appeal for protection against the opinion was upheld by the Santiago Court of Appeal, the ruling was subsequently overturned by the Supreme Court. The Committee observed that negotiating groups are not defined in the Labour Code and recalled that it has always considered that direct negotiation between the enterprise and groups of workers, without organizing in parallel with workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention, and that groups of workers should only be able to negotiate collective agreements or contracts where no such workers’ organizations exist. The Committee requested the Government to adopt, through social dialogue, measures that effectively recognize the fundamental role and the prerogatives of representative organizations of workers and of their representatives and establish mechanisms to prevent the involvement of a negotiating group in collective bargaining from undermining the function of workers’ organizations or weakening the exercise of freedom of association.

The Committee notes that the Government indicates that on 19 May 2022, the Directorate for Labour issued a statement modifying its interpretation of agreements concluded between employers and groups of workers coming together for the purpose of bargaining (negotiating groups), reconsidering its position as expressed in Opinion No. 2928/33 of 2018. The Government reports that under Opinion No. 810/15, the Directorate for Labour determined that: (i) negotiating groups, being entities that are not prohibited by law, may only undertake negotiation procedures of an atypical nature, since there are no legal rules in place to govern such negotiation; (ii) in so far as no regulatory procedure exists in the law, the Directorate for Labour cannot determine a procedure, nor give the agreements signed by these groups the value of collective instruments; (iii) these agreements are not collective instruments regulated by the Labour Code, and thus cannot have the legal effects the Labour Code ascribes to collective instruments concluded within the framework of regulated or non-regulated trade union collective bargaining; and (iv) neither can the agreements concluded with a negotiating group be the subject of an extension of benefits agreement, either through a unilateral extension by the employer, nor by agreement between the parties, since they do not meet the requirements of section 322 of the Labour Code. The Committee notes this opinion with interest and observes that, in the Opinion, the Directorate for Labour indicates that it considered it appropriate to issue a statement, both to resolve the issues that had been raised, and to bring its interpretation of the matter more closely into compliance with the provisions of the Convention, as with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which are binding for the Chilean State. Furthermore, the Committee notes that the Government highlights how the different trade union training programmes that are ongoing in the country contribute to the promotion of collective bargaining and that Act No. 20.940 enables the workers and employers of micro, small and medium-sized enterprises to request that the Directorate for Labour convene a technical assistance meeting on conducting collective bargaining. The Committee encourages the Government to continue to take measures that contribute to promoting collective bargaining within the meaning of the Convention. It requests the Government to report on the impact of the Opinion on collective bargaining and hopes that the Opinionwill contribute to the recognition of the fundamental role of trade union organizations in collective bargaining. The Committee also requests the Government, by making use of statistical information on the registration of collective agreements with the labour inspection, to adopt measures to ensure that the involvement of negotiating groups in collective bargaining does not undermine the function of workers’ organizations or weaken the exercise of freedom of association. Finally, the Committee requests the Government to indicate the number of collective agreements concluded in the country, as well as the sectors affected, and the number of workers covered by these agreements. Further noting from the statistical data provided by the Government, that almost 90 per cent of the collective instruments signed between July 2019 and June 2023 were concluded by a category of negotiating entity denominated as “other type of negotiating entity”, the Committee requests the Government to provide details on the types of entities included in this category.

Enterprises financed by the State. The Committee observed that section 304 of the Labour Code does not allow collective bargaining in State enterprises dependent on the Ministry of National Defence, or which are connected to the Government through this Ministry, and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget in either of the last two calendar years, either directly or through duties or taxes. The Committee takes note of the Government’s indication that on 14 July 2023, the Directorate for Labour issued Opinion No. 995/30, reconsidering the doctrine laid down in 2019 regarding section 304 of the Labour Code, extending the capacity to bargain collectively to the workers to whom that section refers. The Committee observes that the Opinion refers expressly to the comments that the Committee has been formulating and, among other matters, indicates that: (i) the previous doctrine had not established any limit to the prohibition imposed in that section, enabling its application on the sole basis of the financing in question, disregarding any question of its origin, thereby depriving a large number of workers of their fundamental right to bargain collectively and to take strike action, which are essential parts of freedom of association; (ii) the prohibition to bargain collectively provided under section 304 of the Labour Code is exclusively applicable to public or private enterprises in which the State has financed 50 per cent or more of the budget in either of the two last calendar years, that is, a disbursement expressly established in the National Budget Act and not subject to any modality; (iii) the prohibition is not applicable to enterprises or institutions providing goods to the State through the award of State contracts (public tenders or framework and direct negotiation agreements), and (iv) resources transferred to a higher education institution to finance free education (student benefits) are not included under section 304 of the Labour Code, likewise, subsidized education establishments are exempted from the prohibition to negotiate, as are the benefactors of such institutions. The Committee also observes that the Opinion in question indicates that the reasoning applied has been taken into case law jurisprudence, and cites the example of a 2022 ruling by the Appeal Court of Santiago which emphasized that indirect financing is outside the scope of the exclusion provided under section 304 of the Labour Code, when it results from the award of projects and the conclusion of agreements in which the receipt of financing is conditional on effective execution of the contractual considerations. The Committee notes this Opinion with interest, since it seeks, through a restrictive interpretation of section 304, to limit the categories of workers excluded from the right of collective bargaining as a result of that provision. The Committee requests the Government to report on the impact of the interpretation in question on the exercise of the right to bargain collectively. However, recalling that under Articles 5 and 6 of the Convention, only the armed forces and the police and public servants engaged in the administration of the State may be excluded from collective bargaining, the Committee reiterates that it is necessary for the Government to take measures to revise section 304 of the Labour Code to ensure that all categories of workers covered by the Convention are able to take part in collective bargaining. The Committee requests the Government to report on the measures taken in this respect.

Article 6. Scope of application of the Convention. Public employees not engaged in the administration of the State. In its previous comments, the Committee requested the Government to provide detailed information on the manner in which public servants and employees who are not engaged in the administration of the State enjoy the guarantees of the Convention. The Committee observes that, in its report regarding the Labour Relations (Public Service) Convention, 1978 (No. 151), the Government indicates that although collective bargaining is expressly prohibited for the public sector, in practice associations of public sector officials have periodically entered into negotiations with the Executive and an agreement on adjustments to the wages of workers in that sector was concluded in December 2022. The Committee refers to its comments regarding Convention No. 151 and invites the Government to consider adopting the necessary legislative reform to ensure a stable legislative framework for collective bargaining. The Committee also requests the Government to provide details regarding the application of the guarantees provided by the Convention to public servants who are not engaged in the administration of the State.

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

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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 also noted the observations of various workers’ organizations alleging that the industrial relations system does not adequately promote collective bargaining at the different levels, as it gives priority to bargaining at the enterprise level to the detriment of collective bargaining at higher levels, which does not enjoy the same recognized guarantees (the Committee notes that the most recent observations by the General Confederation of Public and Private Sector Workers (CGTP), the Confederation of Copper Workers (CTC), the World Federation of Trade Unions (WFTU) and the Single Central Organization of Workers of Chile (CUT) once again allege that priority is given to enterprise-level bargaining). The Committee notes that the Government, in reply to the Committee, reiterates that confederations and federations can submit draft collective agreements, without being subject to the rules of the regulated collective bargaining process and with the prior agreement of one or more employers or one or more employers’ associations, and emphasizes that this confirms the recognition granted by the legislator in law to voluntary forms of bargaining. The Government also provides statistical data on the negotiations undertaken between 2017 and June 2019 showing that, during this period: (i) a total of 7,372 collective instruments were concluded in the country, covering a total of 975,209 workers; and (ii) of these, inter-enterprise unions concluded 989 collective instruments, covering a total of 173,961 workers.

The Committee also noted in its previous comment the observations of the CGTP indicating that, in accordance with the special collective bargaining system for inter-enterprise unions set out in section 364 of the Labour Code, employers retain the right to refuse to negotiate with inter-enterprise unions in small enterprises (of up to 50 workers which, according to the CGTP, account for over 80 per cent of the enterprises in the country) and that, where an employer so refuses, the Labour Code does not authorize the inter-enterprise union to represent its members. The Committee requested the Government to provide its comments on the CGTP’s observations and to report on the application in practice of the new provisions concerning collective bargaining at the enterprise level by inter-enterprise unions. The Committee notes that the Government refers in response to four legal statements issued by the Directorate for Labour in relation to these provisions (these statements emphasize, for example, that an inter-enterprise union may engage in bargaining through unregulated procedures (with the agreement of the employer) or, in the case of enterprises with over 50 workers, in accordance with the regulated procedure; they add that, if the employer does not notify acceptance or refusal to engage in bargaining with the inter-enterprise union within the time limits, it is understood to have agreed to bargain). The Committee notes that the Government has not replied directly to the observations of the CGTP (which once again raises the matter in its most recent observations, as do the CTC and Federation of Workers Trade Unions of Chile (FESINTRACH)), and that it has not provided information on the impact of the application of section 364 of the Labour Code.

In light of the above, the Committee once again invites 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. The Committee requests the Government to continue providing information on the impact of the labour reform on the exercise of collective bargaining, with comparative data 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. The Committee also requests the Government to provide information on the impact of the application in practice of section 364 of the Labour Code on the choice of the level of organization representing workers in collective bargaining.

Apprentices and occasional and temporary workers and workers engaged for a temporary task or activity. The Committee notes the information provided by the Government on the rules governing collective bargaining for apprentices and occasional and temporary workers and workers engaged on a temporary task or activity, and on the exercise of this right. The statistics provided by the Government show that, between 2017 and June 2019, there were seven bargaining processes covering occasional and temporary workers and workers engaged on a temporary task or activity, and that no union concluded a collective instrument as a result of these processes. Taking due note of this information, the Committee requests the Government to provide information on the measures adopted or envisaged to promote collective bargaining by apprentices and occasional and temporary workers and workers engaged on a temporary task or activity.

Education sector. The Committee also notes that the Committee on Freedom of Association observed that the trade union rights of education assistants are determined in accordance with the system in force for civil servants and it drew attention to the importance of promoting collective bargaining in the education sector within the meaning of Article 4 of the Convention and referred the legislative aspects of the matter to the Committee (see 388th Report, March 2019, Cases Nos 3246 and 3247, paragraph 285). The Committee requests the Government to provide information on the promotion of collective bargaining in the education sector, with particular reference to education assistants and their right to engage in collective bargaining in law and practice.

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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. The Committee has taken due note of this information in its observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee also notes the observations of the Single Central Organization of Workers of Chile (CUT), received on 6 October 2020, relating to the application of the Convention in practice. The Committee requests the Government to provide its comments in this regard.

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 decided not to refer the matter to a Commission of Inquiry and to close the procedure under article 26; and 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 comments adopted in 2019 and reproduced below.

The Committee notes the observations relating to the application of the Convention in law and practice (including allegations of violations in the public, financial, transport, food and copper sectors) provided by the following organizations: 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; and the observations of the Federation of Workers Unions of Chile (FESINTRACH), received on 2 September 2019, the No. 1 Promotion CMR Falabella Enterprise Union, received on 20 September 2019, and the Single Central Organization of Workers of Chile (CUT-Chile), received on 26 October 2019. The Committee requests the Government to provide its comments in this regard. Observing that the Government has not replied to the various requests made in its previous comments, including in relation to the many observations provided by the social partners in 2016, the Committee trusts that it will receive the missing information in the next report.

Article 1 of the Convention. Anti-union discrimination. In its previous comment, the Committee, welcoming the provisions adopted to broaden and strengthen protection against anti-union discrimination, requested the Government, in the light of the considerations outlined by the Committee on Freedom of Association, and the observations of the social partners, to provide information on the impact in practice of the new provisions, evaluating in particular their effective application and dissuasive effect. The Committee notes the Government’s response to the observations of the CGTP and the ITUC in this respect: (i) referring to the applicable provisions of the Labour Code on anti-union and unfair practices (sections 289–292 and 403–406), and recalling that the resolution of complaints is the responsibility of the labour courts, the Government indicates that as a result of the labour reform introduced through Act No. 20940, the legislation establishes distinctions based on the size of the enterprise, with a heavier system of sanctions for medium-sized and large enterprises, and places emphasis on the objective nature of anti-union acts, irrespective of whether they are intentional or not; (ii) the Government indicates that a register is maintained of convictions for anti-union or unfair practices in collective bargaining and the list of enterprises and organizations that are non-compliant is published every six months, with an indication of the acts penalized and fines imposed; the Government refers in this regard to the data on the rulings issued between 2016 and the first half of 2019 (which show that on average there were over 42 convictions each year); (iii) with regard to the legislative requirement to indicate the name of all workers who are members of a union, the Government indicates that, rather than facilitating anti-union discrimination, the provision has a protective purpose by giving effect to the trade union protection enjoyed by such workers under section 309 of the Labour Code (from ten days prior to the submission of the draft collective agreement until 30 days following its conclusion, and that if during this period the workers in question are dismissed, the Directorate for Labour has a special investigation procedure with the purpose of requiring reinstatement); in this regard, it emphasizes the need to know which workers are engaged in collective bargaining; it is also based on other considerations (for example, in order to identify the workers concerned by the collective bargaining process in the event of tacit acceptance by the employer of the union’s proposal), and it specifies that, once the protection afforded for collective bargaining has expired, section 294 of the Labour Code provides for a procedure for setting aside any anti-union dismissal; and (iv) with reference to claims concerning the existence of obstacles and the lack of mechanisms and means to denounce and penalize anti-union practices, the Government indicates that, during the first half of 2019, there were 26 rulings penalizing anti-union or unfair practices in collective bargaining which were given effect and, in 23 of these cases, fines were imposed of between 20 and 300 monthly tax units (approximately equivalent to between US$1,350 and US$20,400); and that a total of 6,992 complaints of anti-union and unfair practices were made between 2013 and March 2018 to the Directorate for Labour, of which 352 related to unlawful individual reinstatement (abandoning a strike to individually negotiate labour conditions) or the replacement of striking workers (with 62 per cent of the complaints relating to reinstatement and replacement being upheld). The Committee also notes that the observations of the social partners include new allegations of anti-union discrimination, and claims that the system of protection against anti-union discrimination is still ineffective and not dissuasive (indicating, for example, that even the maximum penalty of 300 monthly tax units is not dissuasive for a multinational enterprise). While welcoming the detailed explanations and information provided by the Government, the Committee invites it to engage in dialogue with the most representative organizations on the evaluation of the system of protection against anti-union discrimination described above, with an assessment in particular of its application in practice providing information in this regard.

Article 4. Promotion of collective bargaining. Workers’ organizations and negotiating groups. In its previous comment, the Committee noted that: (i) the Constitutional Court found that it would be unconstitutional to provide that workers can only negotiate through unions, considering that, in accordance with the Chilean Constitution, collective bargaining is the right of each and every worker and that this Convention and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ratified by Chile do not require negotiating groups to be excluded from domestic legislation; and (ii) the Government indicated that only collective bargaining with trade unions is regulated by the Labour Code, and that this situation was being assessed with the social partners, and that the Government trusted that a satisfactory solution would be reached in accordance with the Workers’ Representatives Convention, 1971 (No. 135). The Committee notes the Government’s indication in its latest report that: (i) in view of the ruling of the Constitutional Court, the Directorate for Labour issued Opinion No. 3938/33, of 27 July 2018, supplementing and partially reconsidering the previous approach relating to agreements concluded by negotiating groups, and indicating that these agreements constitute a collective instrument recognized explicitly by the Labour Code, which have to be registered by the labour inspectorate; (ii) various trade unions lodged an appeal for protection of their rights against this Opinion with the Court of Appeal of Santiago, which was upheld by the Court, although an appeal was then made to the Supreme Court, which set aside the ruling; and (iii) if a trade union considers that the establishment of a negotiating group or the benefits granted by the employer to a negotiating group imply any act of discrimination, action can be taken in the courts as an anti-union practice, and the corresponding administrative complaint can be made to the Directorate for Labour. The Committee also notes the observations of the CTC, CGTP and WCTU, which once again allege that the recognition of collective bargaining rights to these groups is contrary to the Convention, that this right was set out by Opinion No. 3938/33, referred to above, and that they consider that its purpose is to weaken trade unions and undermine collective bargaining. The Committee also observes that negotiating groups are not defined in the Labour Code.

The Committee is bound to recall once again that, without prejudice to the fact that Chilean legislation recognizes that each and every worker has the right to engage in collective bargaining, this is a collectively exercised right and the Convention, in the same way as other ILO Conventions ratified by Chile, recognizes in this respect the preponderant role of trade unions and workers’ organizations over other methods of association. The concept of workers’ organizations recognized in ILO Conventions is broad (covering a range of organizational forms), and the distinction therefore applies in relation to methods of association that do not fulfil the minimum guarantees and requirements to be considered organizations established with the objective and capacity to further and defend workers’ rights independently and without interference. It is from this perspective that the Convention recognizes, in Article 4, as the parties to collective bargaining, employers or their organizations, on the one hand, and workers’ organizations, on the other, in recognition that the latter offer guarantees of independence that other forms of association may lack. The Committee has therefore always considered that direct negotiation between the enterprise and groups of workers, without organizing in parallel with workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention, and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of workers’ organizations. In addition, it has noted in practice that the negotiation of terms and conditions and work by groups which do not fulfil the guarantees to be considered workers’ organizations can be used to discourage freedom of association and weaken workers’ organizations that are able to defend independently the interests of workers through collective bargaining. The Committee requests the Government to adopt, through social dialogue, measures that effectively recognize the fundamental role and the prerogatives of representative organizations of workers and of their representatives, and establish mechanisms to prevent the involvement of a negotiating group in collective bargaining in the absence of a trade union from undermining the function of workers’ organizations or weakening the exercise of freedom of association.

State enterprises. With regard to the request to amend or repeal section 304 of the Labour Code (which does not allow collective bargaining in State enterprises dependent on the Ministry of National Defence, or which are connected to the Government through this Ministry, and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget in either of the last two calendar years, either directly or through duties or taxes), the Committee notes that the Government reiterates that this section has not been amended with respect to enterprises and institutions financed in part by the fiscal budget. In this regard, the Committee is bound to recall once again that the Convention is compatible with special methods of application for public service workers and reiterates that, in accordance with the terms of Articles 5 and 6 of the Convention, only the armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining. The Committee urges the Government to take the necessary measures to guarantee, in law and practice, that the categories of workers referred to previously can participate in collective bargaining, and to report any developments in this regard.

Article 6. Scope of application of the Convention. Public employees not engaged in the administration of the State. In its previous comment, the Committee noted that the reform of the Labour Code which entered into force in 2017 had not given effect to the request to amend section 1 (which provides that the Labour Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those to which the State contributes or in which it holds shares or is represented, on condition that such officials or workers are subject by law to special regulations). The Committee requested the Government to provide detailed information on the manner in which public servants and employees who are not engaged in the administration of the State (for example, employees of public enterprises and decentralized entities, public sector teachers and transport sector staff) enjoy the guarantees of the Convention. The Committee notes that the Government has not replied to the issue raised and reiterates the information provided in its previous report, indicating that the reform only covers the private sector and that the public employees concerned by this provision, together with public employees of the centralized and decentralized administration, are part of the public sector, in respect of whom the State complies with and applies the Labour Relations (Public Service) Convention, 1978 (No. 151). Recalling that, pursuant to Article 6 of the Convention, only public servants engaged in the administration of the State are exempt from the application of the Convention, the Committee once again requests the Government to provide detailed information on the manner in which public servants and employees who are not engaged in the administration of the State (for example, employees of public enterprises and decentralized entities, public sector teachers and transport sector staff) enjoy the guarantees of the Convention. The Committee also once again requests the Government to provide, in its next report on Convention No. 151, clarifications regarding the application of the guarantees of that Convention to all workers in the public administration.

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.

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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 also noted the observations of various workers’ organizations alleging that the industrial relations system does not adequately promote collective bargaining at the different levels, as it gives priority to bargaining at the enterprise level to the detriment of collective bargaining at higher levels, which does not enjoy the same recognized guarantees (the Committee notes that the most recent observations by the CGTP, CTC, WFTU and CUT once again allege that priority is given to enterprise-level bargaining). The Committee notes that the Government, in reply to the Committee, reiterates that confederations and federations can submit draft collective agreements, without being subject to the rules of the regulated collective bargaining process and with the prior agreement of one or more employers or one or more employers’ associations, and emphasizes that this confirms the recognition granted by the legislator in law to voluntary forms of bargaining. The Government also provides statistical data on the negotiations undertaken between 2017 and June 2019 showing that, during this period: (i) a total of 7,372 collective instruments were concluded in the country, covering a total of 975,209 workers; and (ii) of these, inter-enterprise unions concluded 989 collective instruments, covering a total of 173,961 workers.

The Committee also noted in its previous comment the observations of the CGTP indicating that, in accordance with the special collective bargaining system for inter-enterprise unions set out in section 364 of the Labour Code, employers retain the right to refuse to negotiate with inter-enterprise unions in small enterprises (of up to 50 workers which, according to the CGTP, account for over 80 per cent of the enterprises in the country) and that, where an employer so refuses, the Labour Code does not authorize the inter-enterprise union to represent its members. The Committee requested the Government to provide its comments on the CGTP’s observations and to report on the application in practice of the new provisions concerning collective bargaining at the enterprise level by inter-enterprise unions. The Committee notes that the Government refers in response to four legal statements issued by the Directorate for Labour in relation to these provisions (these statements emphasize, for example, that an inter-enterprise union may engage in bargaining through unregulated procedures (with the agreement of the employer) or, in the case of enterprises with over 50 workers, in accordance with the regulated procedure; they add that, if the employer does not notify acceptance or refusal to engage in bargaining with the inter-enterprise union within the time limits, it is understood to have agreed to bargain). The Committee notes that the Government has not replied directly to the observations of the CGTP (which once again raises the matter in its most recent observations, as do the CTC and FESINTRACH), and that it has not provided information on the impact of the application of section 364 of the Labour Code.

In light of the above, the Committee once again invites 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. The Committee requests the Government to continue providing information on the impact of the labour reform on the exercise of collective bargaining, with comparative data 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. The Committee also requests the Government to provide information on the impact of the application in practice of section 364 of the Labour Code on the choice of the level of organization representing workers in collective bargaining.

Apprentices and occasional and temporary workers and workers engaged for a temporary task or activity. The Committee notes the information provided by the Government on the rules governing collective bargaining for apprentices and occasional and temporary workers and workers engaged on a temporary task or activity, and on the exercise of this right. The statistics provided by the Government show that, between 2017 and June 2019, there were seven bargaining processes covering occasional and temporary workers and workers engaged on a temporary task or activity, and that no union concluded a collective instrument as a result of these processes. Taking due note of this information, the Committee requests the Government to provide information on the measures adopted or envisaged to promote collective bargaining by apprentices and occasional and temporary workers and workers engaged on a temporary task or activity.

Education sector. The Committee also notes that the Committee on Freedom of Association observed that the trade union rights of education assistants are determined in accordance with the system in force for civil servants and it drew attention to the importance of promoting collective bargaining in the education sector within the meaning of Article 4 of the Convention and referred the legislative aspects of the matter to the Committee of Experts (388th Report, March 2019, Cases Nos 3246 and 3247, paragraph 285). The Committee requests the Government to provide information on the promotion of collective bargaining in the education sector, with particular reference to education assistants and their right to engage in collective bargaining in law and practice.

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The Committee notes the observations relating to the application of the Convention in law and practice (including allegations of violations in the public, financial, transport, food and copper sectors) provided by the following organizations: 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; and the observations of the Federation of Workers Unions of Chile (FESINTRACH), received on 2 September 2019, the No. 1 Promotion CMR Falabella Enterprise Union, received on 20 September 2019, and the Single Central Organization of Workers of Chile (CUT-Chile), received on 26 October 2019. The Committee requests the Government to provide its comments in this regard. Observing that the Government has not replied to the various requests made in its previous comments, including in relation to the many observations provided by the social partners in 2016, the Committee trusts that it will receive the missing information in the next report.

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 2019 International Labour Conference, was declared receivable and is pending before the Governing Body.

Article 1 of the Convention. Anti-union discrimination. In its previous comment, the Committee, welcoming the provisions adopted to broaden and strengthen protection against anti-union discrimination, requested the Government, in the light of the considerations outlined by the Committee on Freedom of Association, and the observations of the social partners, to provide information on the impact in practice of the new provisions, evaluating in particular their effective application and dissuasive effect. The Committee notes the Government’s response to the observations of the CGTP and the ITUC in this respect: (i) referring to the applicable provisions of the Labour Code on anti-union and unfair practices (sections 289–292 and 403–406), and recalling that the resolution of complaints is the responsibility of the labour courts, the Government indicates that as a result of the labour reform introduced through Act No. 20940, the legislation establishes distinctions based on the size of the enterprise, with a heavier system of sanctions for medium-sized and large enterprises, and places emphasis on the objective nature of anti-union acts, irrespective of whether they are intentional or not; (ii) the Government indicates that a register is maintained of convictions for anti-union or unfair practices in collective bargaining and the list of enterprises and organizations that are non-compliant is published every six months, with an indication of the acts penalized and fines imposed; the Government refers in this regard to the data on the rulings issued between 2016 and the first half of 2019 (which show that on average there were over 42 convictions each year); (iii) with regard to the legislative requirement to indicate the name of all workers who are members of a union, the Government indicates that, rather than facilitating anti-union discrimination, the provision has a protective purpose by giving effect to the trade union protection enjoyed by such workers under section 309 of the Labour Code (from ten days prior to the submission of the draft collective agreement until 30 days following its conclusion, and that if during this period the workers in question are dismissed, the Directorate for Labour has a special investigation procedure with the purpose of requiring reinstatement); in this regard, it emphasizes the need to know which workers are engaged in collective bargaining; it is also based on other considerations (for example, in order to identify the workers concerned in the event of tacit acceptance by the employer), and it specifies that, once the protection afforded for collective bargaining has expired, section 294 of the Labour Code provides for a procedure for setting aside any anti-union dismissal; and (iv) with reference to claims concerning the existence of obstacles and the lack of mechanisms and means to denounce and penalize anti-union practices, the Government indicates that, during the first half of 2019, there were 26 rulings penalizing anti-union or unfair practices in collective bargaining which were given effect and, in 23 of these cases, fines were imposed of between 20 and 300 monthly tax units (approximately equivalent to between US$1,350 and $20,400); and that a total of 6,992 complaints of anti-union and unfair practices were made between 2013 and March 2018 to the Directorate for Labour, of which 352 related to unlawful individual reinstatement (abandoning a strike to individually negotiate labour conditions) or the replacement of striking workers (with 62 per cent of the complaints relating to reinstatement and replacement being upheld). The Committee also notes that the observations of the social partners include new allegations of anti-union discrimination, and claims that the system of protection against anti-union discrimination is still ineffective and not dissuasive (indicating, for example, that even the maximum penalty of 300 monthly tax units is not dissuasive for a multinational enterprise). While welcoming the detailed explanations and information provided by the Government, the Committee invites it to engage in dialogue with the most representative organizations on the evaluation of the system of protection against anti-union discrimination described above, with an assessment in particular of its application in practice and its dissuasive effect. The Committee requests the Government to continue providing information in this regard.

Article 4. Promotion of collective bargaining. Workers’ organizations and negotiating groups. In its previous comment, the Committee noted that: (i) the Constitutional Court found that it would be unconstitutional to provide that workers can only negotiate through unions, considering that, in accordance with the Chilean Constitution, collective bargaining is the right of each and every worker and that this Convention and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ratified by Chile do not require negotiating groups to be excluded from domestic legislation; and (ii) the Government indicated that only collective bargaining with trade unions is regulated by the Labour Code, and that this situation was being assessed with the social partners, and that the Government trusted that a satisfactory solution would be reached in accordance with the Workers’ Representatives Convention, 1971 (No. 135). The Committee notes the Government’s indication in its latest report that: (i) in view of the ruling of the Constitutional Court, the Directorate for Labour issued Opinion No. 3938/33, of 27 July 2018, supplementing and partially reconsidering the previous approach relating to agreements concluded by negotiating groups, and indicating that these agreements constitute a collective instrument recognized explicitly by the Labour Code, which have to be registered by the labour inspectorate; (ii) various trade unions lodged an appeal for protection of their rights against this Opinion with the Court of Appeal of Santiago, which was upheld by the Court, although an appeal was then made to the Supreme Court, which set aside the ruling; and (iii) if a trade union considers that the establishment of a negotiating group or the benefits granted by the employer to a negotiating group imply any act of discrimination, action can be taken in the courts as an anti-union practice, and the corresponding administrative complaint can be made to the Directorate for Labour. The Committee also notes the observations of the CTC, CGTP and WCTU, which once again allege that the recognition of collective bargaining rights to these groups is contrary to the Convention, that this right was set out by Opinion No. 3938/33, referred to above, and that they consider that its purpose is to weaken trade unions and undermine collective bargaining. The Committee also observes that negotiating groups are not defined in the Labour Code.

The Committee is bound to recall once again that, without prejudice to the fact that Chilean legislation recognizes that each and every worker has the right to engage in collective bargaining, this is a collectively exercised right and the Convention, in the same way as other ILO Conventions ratified by Chile, recognizes in this respect the preponderant role of trade unions and workers’ organizations over other methods of association. The concept of workers’ organizations recognized in ILO Conventions is broad (covering a range of organizational forms), and the distinction therefore applies in relation to methods of association that do not fulfil the minimum guarantees and requirements to be considered organizations established with the objective and capacity to further and defend workers’ rights independently and without interference. It is from this perspective that the Convention recognizes, in Article 4, as the parties to collective bargaining, employers or their organizations, on the one hand, and workers’ organizations, on the other, in recognition that the latter offer guarantees of independence that other forms of association may lack. The Committee has therefore always considered that direct negotiation between the enterprise and groups of workers, without organizing in parallel with workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention, and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of workers’ organizations. In addition, it has noted in practice that the negotiation of terms and conditions and work by groups which do not fulfil the guarantees to be considered workers’ organizations can be used to discourage freedom of association and weaken workers’ organizations that are able to defend independently the interests of workers through collective bargaining. The Committee requests the Government to adopt, through social dialogue, measures that effectively recognize the fundamental role and the prerogatives of representative organizations of workers and of their representatives, and establish mechanisms to prevent the involvement of a negotiating group in collective bargaining in the absence of a trade union from undermining the function of workers’ organizations or weakening the exercise of freedom of association.

State enterprises. With regard to the request to amend or repeal section 304 of the Labour Code (which does not allow collective bargaining in State enterprises dependent on the Ministry of National Defence, or which are connected to the Government through this Ministry, and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget in either of the last two calendar years, either directly or through duties or taxes), the Committee notes that the Government reiterates that this section has not been amended with respect to enterprises and institutions financed in part by the fiscal budget. In this regard, the Committee is bound to recall once again that the Convention is compatible with special methods of application for public service workers and reiterates that, in accordance with the terms of Articles 5 and 6 of the Convention, only the armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining. The Committee urges the Government to take the necessary measures to guarantee, in law and practice, that the categories of workers referred to previously can participate in collective bargaining, and to report any developments in this regard.

Article 6. Scope of application of the Convention. Public employees not engaged in the administration of the State. In its previous comment, the Committee noted that the reform of the Labour Code which entered into force in 2017 had not given effect to the request to amend section 1 (which provides that the Labour Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those to which the State contributes or in which it holds shares or is represented, on condition that such officials or workers are subject by law to special regulations). The Committee requested the Government to provide detailed information on the manner in which public servants and employees who are not engaged in the administration of the State (for example, employees of public enterprises and decentralized entities, public sector teachers and transport sector staff) enjoy the guarantees of the Convention. The Committee notes that the Government has not replied to the issue raised and reiterates the information provided in its previous report, indicating that the reform only covers the private sector and that the public employees concerned by this provision, together with public employees of the centralized and decentralized administration, are part of the public sector, in respect of whom the State complies with and applies the Labour Relations (Public Service) Convention, 1978 (No. 151). Recalling that, pursuant to Article 6 of the Convention, only public servants engaged in the administration of the State are exempt from the application of the Convention, the Committee once again requests the Government to provide detailed information on the manner in which public servants and employees who are not engaged in the administration of the State (for example, employees of public enterprises and decentralized entities, public sector teachers and transport sector staff) enjoy the guarantees of the Convention. The Committee also once again requests the Government to provide, in its next report on Convention No. 151, clarifications regarding the application of the guarantees of that Convention to all workers in the public administration.

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

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The Committee notes the observations of the World Federation of Trade Unions (WFTU) received on 7 March 2014; 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’ Unions (AGROSUPER), the Inter-Enterprise Union of Subcontracting Enterprises (SITEC), the Inter-Enterprise Union of Actors of Chile (SIDARTE), the National Inter-Enterprise Union of Film and Audio-visual Professionals and Technicians (SINTECI), the Federation of ENAP Contract Workers of Concón, the Inter-Enterprise Union of Professional Footballers, the Federation of Workers’ Trade Unions of ISS Holding Companies and Subsidiaries, and General Services (FETRASSIS) and the Inter-Enterprise Union of Domestic Workers, received on 22 April 2014; the International Trade Union Confederation (ITUC), received on 1 September 2014 and 31 August 2016; and the General Confederation of Public and Private Sector Workers (CGTP), received on 31 August 2016, on the application of the Convention in law and practice. The Committee requests the Government to send its comments in this regard. The Committee also notes the communication from 53 trade union leaders, received on 1 September 2016, expressing concern at the ruling of the Constitutional Court of 9 May 2016 on the labour reform.

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 Workers’ delegate to the 2016 International Labour Conference, was declared receivable and is pending before the Governing Body.

Articles 1–6 of the Convention. Labour reform. The Committee notes the adoption of Act No. 20.940, modernizing the industrial relations system, which will enter into force on 1 April 2017. The Committee notes the Government’s indication that: (i) consultations were held with a large number of social partners during the process of adoption of the Act; (ii) the previous comments of the Committee and technical support of the Office were taken into consideration; (iii) certain provisions of the Bill by senators and deputies who opposed them were submitted to the Constitutional Court, and the ruling partially upheld their challenge, particularly by eliminating the provisions on the recognition of trade unions for collective bargaining purposes; and (iv) the Government had to make additional amendments to the Bill due to the imbalances introduced through the elimination of the provisions on the recognition of trade unions for collective bargaining purposes.

With regard to requests made to the Government in previous comments to amend or repeal specific provisions of the Labour Code, which were not in conformity with the Convention, the Committee notes with satisfaction that Act No. 20.940:

• -eliminates the general exclusions from collective bargaining set forth in sections 82 and 305(1) of the Labour Code for apprentices and those under contract solely to work on a specific task or activity, or for a specific period. Noting that the regulations respecting collective bargaining for these categories of workers are subject to special conditions, the Committee requests the Government to provide information on their application in practice;
• -repeals the rule contained in section 334(b) of the Labour Code, which provided that two or more unions from different enterprises, an inter-enterprise union or a federation or confederation may submit draft collective labour agreements, provided that in the enterprise concerned an absolute majority of the worker members who are entitled to engage in collective bargaining agree to confer representation on the trade union concerned in an assembly, by secret ballot and in the presence of a public notary;
• -repeals the rule contained in section 320 of the Labour Code, which placed an obligation on employers to notify all workers in the enterprise of the submission of a draft collective agreement so that they can propose draft texts or agree to the draft submitted;
• -repeals the rule contained in section 334bis of the Labour Code, which provided that, for employers, bargaining with the inter-enterprise union shall be voluntary or optional and that, where an employer refuses, the workers who are not members of the inter-enterprise union could submit draft collective agreements. The Committee considered that these provisions did not, in general terms, adequately promote collective bargaining with trade union organizations. The Committee notes the Government’s indication that the labour reform replaced this provision with a rule allowing inter-enterprise trade unions to submit draft collective agreements at the enterprise level on behalf of their members. The Committee also notes the CGTP’s indication that, in accordance with the special collective bargaining system for inter-enterprise unions set out in the new section 364 of the Labour Code, employers retain the right to refuse to negotiate with inter-enterprise unions in small enterprises (of up to 50 workers which, according to the CGTP, accounts for more than 80 per cent of the enterprises in the country) and that, where an employer so refuses, the new section 364 of the Labour Code does not authorize the inter-enterprise union to represent its members. The Committee requests the Government to provide its comments regarding the CGTP’s observations and to report on the application in practice of the new provisions concerning collective bargaining at the enterprise level by inter-enterprise unions.

The Committee also notes with satisfaction the additional measures for the promotion of voluntary collective bargaining introduced through Act No. 20.940, such as the broadening of the right to information (there is a specific section on this in the amended Labour Code which includes, for example, a requirement for employers to provide specific and necessary information on the enterprise for the negotiation), the simplification of the collective bargaining procedure and the broadening of the issues which may be covered by negotiation.

The Committee also notes that the labour reform has not addressed the following issues raised in its previous comments:

• -With regard to the request to amend section 1 of the Labour Code (which provides that the Labour Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those to which the State contributes or in which it holds shares or is represented, provided that such officials or workers are subject by law to special regulations), the Committee notes the Government’s indication that the labour reform has not amended this provision, as the reform only covers the private sector and that the public employees concerned by this provision, together with public employees of the centralized and decentralized administration, are part of the public sector, in respect of whom the State complies with and applies the Labour Relations (Public Service) Convention, 1978 (No. 151). Recalling that, pursuant to Article 6 of the Convention, only public servants engaged in the administration of the State are exempt from the application of the Convention, the Committee requests the Government to provide detailed information on the manner in which public servants and employees who are not engaged in the administration of the State (for example, employees of public enterprises and decentralized entities, public sector teachers and transport sector staff) enjoy the guarantees of the Convention. The Committee also requests the Government to provide, in its next report on Convention No. 151, clarification regarding the application of the guarantees of that Convention to all workers in the public administration.
• -With regard to the request to amend or repeal section 304 of the Labour Code (which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or which are connected to the Government through this Ministry and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget in either of the last two calendar years, either directly or through duties or taxes), the Committee notes with regret the Government’s indication that this section has not been amended with respect to enterprises and institutions financed in part by the fiscal budget. In this respect, the Committee is bound to recall that the Convention is compatible with special methods of application for public service workers and reiterates that, in accordance with the terms of Articles 5 and 6 of the Convention, only the armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining. The Committee requests the Government to take the necessary measures to guarantee that the categories of workers referred to previously can participate in collective bargaining, in law and practice.

Anti-union discrimination. The Committee notes that the Committee on Freedom of Association, welcoming the willingness expressed by the Government to revise the regulations determining and penalizing anti-union practices in order to address any shortcomings in the legislation in consultation with the social partners, requested the Government to keep the Committee of Experts informed in this regard (Case No. 3053, 377th Report, paragraph 288). In addition, the Committee notes that in their observations the CGTP and the ITUC denounce recurrent anti-union practices, and the excessively light and non-dissuasive penalties, and the restrictive jurisdictional criteria, under which practices must be of a recurrent nature and of special intent to justify this trade union protection mechanism. The Committee notes that the CGTP also alleges: (i) that the submissions to commence collective bargaining must include the name of every member of the trade union and that this facilitates anti-union discrimination, particularly through dismissal; and (ii) the existence of obstacles and absence of mechanisms and means for reporting and penalizing anti-union practices. The Committee requests the Government to provide its comments in this respect. At the same time, the Committee notes with interest the amendments to Act No. 20.940 extending the scope of protection against anti-union discrimination (for example, the definition of anti-union dismissal, covered by labour protection procedures allowing reinstatement in the enterprise has been broadened, including in cases of termination of the employment relationship (including, as emphasized by the Government, in cases of non-renewal of contracts)) and increasing penalties, subject to adaptations based on the size of the enterprise. Welcoming the provisions adopted to broaden and strengthen protection against anti-union discrimination, the Committee requests the Government, in light of the considerations outlined by the Committee on Freedom of Association and the observations of the social partners, to provide information on the impact in practice of these new provisions, evaluating in particular their effective application and dissuasive effect.

Workers’ organizations and negotiating groups. The Committee notes that, in relation to the Committee’s requests to repeal sections 314bis and 315 of the Labour Code (which provided that groups of workers, even where there are unions, may submit draft collective agreements), the Government indicates that the amendments introduced as part of the Labour Code reform eliminated these provisions and that similar rules were not introduced regulating collective bargaining by negotiating groups, even where there are unions. However, the Constitutional Court ruled that it would be unconstitutional to provide that workers can only negotiate through unions. In this respect, the Committee notes that, while the Bill, taking into consideration its previous comments, set out the recognition of trade union rights to collective bargaining, the decision of the Constitutional Court found the provisions introduced on this subject to be unconstitutional, emphasizing that, in accordance with the Chilean Constitution, collective bargaining is the right of each and every worker, concluding that Conventions Nos 87 and 98 ratified by Chile do not require negotiating groups to be excluded from domestic legislation. The Committee also notes that the Government indicates that only collective bargaining with trade unions is regulated in the Labour Code, that this situation is being assessed by the Government and the social partners, and that it trusts that a satisfactory solution can be reached in accordance with the Workers’ Representatives Convention, 1971 (No. 135). The Committee is bound to recall that, without prejudice to the fact that Chilean legislation recognizes that each and every worker has the right to collective bargaining, this is a collectively exercised right and the Convention, in the same way as other ILO Conventions ratified by Chile, recognizes, in this respect, the preponderant role of trade unions and workers’ organizations over other groups. The concept of workers’ organizations recognized in ILO Conventions is broad (covering a range of organizational forms) and the distinction, therefore, applies in relation to the methods of association which do not fulfil the minimum guarantees and requirements to be considered organizations established with the objective and capacity to further and defend workers’ rights independently and without interference. It is from this perspective that the Convention recognizes, in Article 4, as the parties to collective bargaining employers or their organizations on the one hand, and workers’ organizations on the other, in recognition that the latter offer guarantees of independence that other forms of groupings may lack. The Committee has, therefore, always considered that direct negotiation between the enterprise and groups of workers, without organizing in parallel with workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention, and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of workers’ organizations. In addition, it has noted in practice that the negotiation of terms and conditions of employment and work by groups which do not fulfil the guarantees to be considered workers’ organizations can be used to discourage freedom of association and undermine the workers’ organizations that are able to defend independently the interests of workers through collective bargaining. Noting the initiatives announced by the Government to assess, with the social partners, the situation of negotiating groups, the Committee requests the Government to seek, through social dialogue, solutions which recognize the fundamental role and the prerogatives of representative organizations of workers and their representatives, and which establish mechanisms to prevent the involvement of a negotiating group in collective bargaining, in the absence of a trade union, from undermining the function of workers’ organizations or weakening the exercise of freedom of association.

Level of collective bargaining. The Committee notes that, according to the Government, the reform maintains collective bargaining that is binding (“regulated”) at the enterprise level and that at higher levels collective bargaining remains voluntary. It adds that confederations and federations can submit draft collective agreements and initiate negotiations regulated by the Labour Code. The Committee also notes the observations of the ITUC, the CGTP and the WFTU alleging that the industrial relations system does not adequately promote collective bargaining at the different levels, as it gives priority to bargaining at the enterprise level to the detriment of collective bargaining at higher levels, which do not enjoy the same recognized guarantees. The Committee requests the Government to provide its comments on the observations of the WFTU, CGTP and ITUC in this respect and invites it to engage in social dialogue with a view to agreeing on solutions to encourage the full development and use of collective bargaining procedures at the various levels. The Committee also requests the Government to provide information on the effect of the new industrial relations system established by law on the exercise of collective bargaining, with comparative data on the number of collective agreements concluded by level and sector, and the number of workers covered.

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The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 30 August 2013 and by the Trade Unions Federation of Supervisors and Professionals of CODELCO Chile (FESUC) on the application of the Convention, as well as the Government’s reply thereto.

For a number of years the Committee has been asking the Government to take steps to amend or repeal the following provisions of the Labour Code which are not in conformity with the Convention: (i) section 1, which provides that the Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those in which the State contributes or in which it participates or is represented, provided that such officials or workers are subject by law to special regulations; (ii) section 82, which provides that the remuneration of apprentices may on no account be determined by means of collective agreements or accords or arbitration awards issued in the context of collective bargaining, and section 305(1), which provides that workers governed by an apprenticeship contract and those engaged solely for a specific task or activity or for a specific period, may not engage in collective bargaining; (iii) section 304, which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or which are connected to the Government through this Ministry and in enterprises in which collective bargaining is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget of either of the last two calendar years, either directly or through duties or taxes; (iv) section 334(b), which provides that two or more unions of different enterprises, an inter-enterprise union or a federation or confederation may submit draft collective labour accords on behalf of their members and of the workers who agree to the accords, but in order to do so it shall be necessary that, in the enterprise concerned, an absolute majority of the worker members who are entitled to engage in collective bargaining confer, by secret ballot, representation on the trade union concerned in an assembly in the presence of a public notary; (v) section 334bis, which provides that, for employers, bargaining with the inter-enterprise union shall be voluntary or optional and that where an employer refuses, the workers of the enterprise who are not members of the inter-enterprise union may submit draft collective accords in accordance with the general rules set  forth in Book IV (on collective bargaining) of the Labour Code; (vi) sections 314bis and 315, which provide that groups of workers, even where there are unions, may submit draft collective agreements; and (vii) section 320, which places an obligation on employers to notify all workers in the enterprise of the submission of a draft collective accord so that they can propose draft texts or agree to the draft submitted.

The Committee notes that the Government repeats the statement made in its previous report indicating its willingness to incorporate in the national legislation all the provisions needed to ensure rapid conformity with the Convention. The Committee expresses the hope that the Government will take the necessary measures in the very near future to bring the legislation into full conformity with the Convention. The Committee reminds the Government that, in the context of the legislative reform, it may avail itself of ILO technical assistance if it wishes.

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The Committee notes the comments from the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning the application of the Convention. With regard to the comments dated 24 March 2009 from the National Inter-Enterprise Union of Airport Workers of Chile and other unions in various sectors and the comments dated August 2009 from the ITUC, the Committee notes the Government’s indication that it will send its observations as soon as possible. The Committee is awaiting to receive the Government’s observations.

In its previous comments the Committee referred to the following provisions of the Labour Code which are not in conformity with the provisions of the Convention:

• – section 1 of the Labour Code, which provides that the Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those in which the State contributes or in which it participates or is represented, provided that such officials or workers are subject by law to special regulations. The Committee notes that the Government welcomes this observation and expresses its willingness to take account of it in the forthcoming legislative discussions, and will provide information on any changes that occur in this matter;
• – section 82 of the Labour Code, which provides that “the remuneration of apprentices may on no account be determined by means of collective agreements or accords or arbitration awards issued in the context of collective bargaining”, and section 305(1), which provides that workers governed by an apprenticeship contract and those engaged solely for a specific task or activity or for a specific period, may not engage in collective bargaining. The Committee notes the Government’s statement that although there are limitations on the participation of these workers in regulated collective bargaining, these workers are able to take part in unregulated collective bargaining resulting in the conclusion of collective labour agreements that have an effect identical to those of collective labour agreements signed in conformity with the provisions of regulated collective bargaining. The Committee requests the Government to provide examples of unregulated collective bargaining in which remuneration for apprentices is determined, indicating the number of apprentices covered by collective agreements in the country;
• – section 304 of the Labour Code, which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or which are connected to the Government through this Ministry and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget of either of the last two calendar years, either directly or through duties or taxes. The Committee notes the Government’s indication that a legal reform of the collective bargaining system for entities which may not engage in collective bargaining is an issue of parliamentary debate of current and future relevance and various items of draft legislation are before the Congress with a view to amending the legal provisions in force in this area, and one of these drafts was rejected for lack of a quorum. The Committee notes a number of legal or constitutional difficulties relating to collective bargaining in the public sector which have been referred to in the discussions (according to the Government’s report), but it emphasizes that the Convention is compatible with special methods of application in the public service. The Committee recalls that, under the terms of Articles 5 and 6 of the Convention, only the armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining. The Committee therefore considers that the categories of workers referred to above should enjoy the right to collective bargaining in law and in practice;
• – section 334(b), which provides that two or more unions of different enterprises, an inter-enterprise union or a federation or confederation may submit draft collective labour contracts on behalf of their members and the workers who agree to the contracts, but in order to do so it shall be necessary in the enterprise concerned for an absolute majority of the worker members who are entitled to engage in collective bargaining to confer representation on the trade union concerned in an assembly, by secret ballot and in the presence of a public notary. The Committee notes that the Government reiterates that it will take account of these comments in future legal discussions;
• – section 334bis, which provides that, for employers, bargaining with the inter enterprise union shall be voluntary or optional and that where an employer refuses, the workers who are not members of the inter-enterprise union may submit draft collective contracts in accordance with the general rules set forth in Book IV (on collective bargaining). The Committee welcomes the Government’s statement that it will take account of these comments in due course. The Committee considers that these provisions do not, generally speaking, adequately promote collective bargaining with trade union organizations;
• – sections 314bis and 315 of the Labour Code, which provide that groups of workers, even when there are unions, may submit draft collective agreements. In its previous comments the Committee noted a bill which contains various amendments to the current legislation on collective bargaining and will enable collective bargaining to be undertaken by groups of workers formed for this purpose solely in enterprises where there is no existing trade union;
• – section 320 of the Labour Code, which places an obligation on employers to notify all workers in the enterprise of the submission of a draft collective accord so that they can propose draft texts or agree to the draft submitted. The Committee notes the Government’s statement that the purpose of this provision is to promote and facilitate collective bargaining together with other provisions relating to the same subject, and to establish order and peace so that the enterprise is not exposed to repeated bargaining procedures which waste time and affect productivity at the levels of both management and workers; according to the Government, this provision does not affect voluntary collective bargaining and only applies to regulated collective bargaining. The Committee recalls that direct bargaining between an enterprise and its workers, over and above representative organizations where these exist, may be detrimental to the principle that collective bargaining between employers’ and workers’ organizations is to be encouraged and that groups of workers should be able to negotiate collective agreements or accords only in the absence of such organizations.

While noting the information supplied by the Government, the Committee emphasizes that significant restrictions have continued for years on the exercise of the rights established in the Convention. The Committee has noted certain draft reforms which had an impact on the application of the Convention (the reform relating to collective bargaining and the right to strike of public servants, which was rejected for lack of the constitutional quorum required for its adoption; the reform of the Constitutional Organic Act on municipalities, No. 18695, which was shelved following its rejection by the Chamber of Deputies; and the reforms relating to the collective bargaining system, which are at the first stage of the constitutional process).

The Committee underlines the importance of the pending issues and expresses the firm hope that the Government will take the necessary measures to amend the legislation to bring it into full conformity with the provisions of the Convention. The Committee again requests the Government to provide information in its next report on all specific measures taken in this respect.

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The Committee notes the comments of 24 March 2009 sent by the National Inter-Enterprise Union of Airport Workers of Chile and other unions from various sectors in a lengthy communication covering numerous matters, and also the comments of August 2009 made by the International Trade Union Confederation (ITUC). The Committee requests the Government to send its observations in this respect, and also on the comments of the ITUC of 28 August 2007 (the Government declares that it has requested information from the competent authorities and will send it once it has been received).

The Committee recalls that in its previous comments it referred to the following provisions of the Labour Code which are not in conformity with the provisions of the Convention:

–      section 1 of the Labour Code, which provides that the Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those in which the State contributes or in which it participates or is represented, provided that such officials or workers are subject by law to special regulations;

–      section 82 of the Labour Code, which provides that the remuneration of apprentices may on no account be determined by means of collective agreements or contracts, or arbitration awards issued in the context of collective bargaining, and section 305(1), which provides that workers governed by an apprenticeship contract and those engaged solely for a specific task or activity, or for a specific period, may not engage in collective bargaining;

–      section 304 of the Labour Code, which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or which are connected to the Government through this Ministry, and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget of either of the last two calendar years, either directly or through duties or taxes;

        While appreciating the Government’s statement in which it indicates that it will take account of the observations made in this respect, the Committee recalls that, in accordance with Articles 5 and 6 of the Convention, only members of the armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining. The Committee therefore considers that the categories of workers mentioned above should enjoy the right to collective bargaining;

–      section 334(b) provides that two or more unions of different enterprises, an inter-enterprise union or a federation or confederation may submit draft collective labour contracts on behalf of their members and the workers who agree to the contracts, but in order to do so it shall be necessary in the enterprise concerned for an absolute majority of the worker members who are entitled to engage in collective bargaining to accord representation to the trade union concerned in an assembly, by secret ballot and in the presence of a public notary. The Committee appreciates the Government’s statement that it will take account of these comments in future legal discussions. In the Committee’s view, these requirements are difficult to meet and do not promote collective bargaining, and should accordingly be abolished or amended;

–      section 334bis, which provides that for employers, bargaining with the inter-enterprise union shall be voluntary or optional and that where an employer refuses, the workers who are members of the inter-enterprise union may submit draft collective contracts in accordance with the general rules set forth in Book IV (on collective bargaining). The Committee appreciates the Government’s statement that it will take account of these comments at the appropriate time. The Committee considers that these provisions do not, generally speaking, adequately promote collective bargaining with trade union organizations;

–      sections 314bis and 315 of the Labour Code, which provide that groups of workers, even when there are unions, may submit draft collective agreements. The Committee notes the Government’s statement that a draft Act is currently under examination which contains various amendments to the current legislation on collective bargaining and will enable collective bargaining to be undertaken by groups of workers formed for this purpose solely in enterprises where there is no existing trade union;

–      section 320 of the Labour Code, which places an obligation on employers to notify to all workers in the enterprise the submission of a draft collective agreement so that they can propose draft texts or agree to the draft submitted. The Committee notes that the Government undertakes to keep the Committee informed of any measures adopted in this regard in the future. The Committee recalls that direct bargaining between an enterprise and its workers, over and above representative organizations where these exist, may be to the detriment of the principle that collective bargaining between employers’ and workers’ organizations is to be encouraged, and that groups of workers should be able to negotiate collective agreements or accords only in the absence of such organizations.

Although it appreciates that the Government is open to the introduction of improvements in relation to the application of the Convention, the Committee emphasizes that significant restrictions on the exercise of the rights established in the Convention have continued to occur for a number of years. The Committee expresses the hope that the Government will take the necessary steps 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 all specific measures adopted in this respect.

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The Committee takes note of the Government’s report and its response to the comments of 8 January 2006 by the National Inter-Enterprise Union of Metal, Energy, Communication and Allied Workers (SME), which referred to the following matters:

–           Section 82 of the Labour Code which provides that “in no event may the remuneration of apprentices be determined by means of collective agreements or contracts, or arbitration awards issued in the context of collective bargaining”, and section 305(1), which provides that workers governed by an apprenticeship contract and those engaged solely for a specific task or activity, or for a specific period, may not engage in collective bargaining. The Committee notes that, according to the Government, the reason for this prohibition is that services are provided on a temporary basis and in any event for a shorter time than the period of validity of a collective instrument (two years). The Government adds that section 314(2) of the Labour Code allows unions of temporary or casual workers to come to agreements with one or more employers on common conditions of work and pay for certain temporary or seasonal tasks or activities. Furthermore, despite the limitation, apprentices’ wages are protected within the framework of the statutory definition of “minimum wage”. While noting the Government’s statement that it will take account of the SME’s comments in future legal discussions, the Committee would again point out that, according to Articles 5 and 6 of the Convention, only the armed forces, the police and public officials engaged in the administration of the State may be excluded from collective bargaining.

–           Section 334(b) provides that two or more unions of different enterprises, an inter-enterprise union or a federation or confederation may submit draft collective labour contracts on behalf of their members and the workers who agree to the contracts, but in order to do so it shall be necessary in the enterprise concerned for an absolute majority of the worker members who are entitled to engage in collective bargaining to accord representation to the trade union concerned in an assembly, by secret ballot and in the presence of a public notary. In the Committee’s view, these requirements are difficult to meet and do not adequately promote collective bargaining, and should accordingly be abolished or amended.

–           Section 334bis, which provides that for employers, bargaining with the inter-enterprise union shall be voluntary or optional and that where an employer refuses, the workers who are members of the inter-enterprise union may submit draft collective contracts in accordance with the general rules set forth in Book IV (on collective bargaining). The Committee notes that, according to the Government, the rules on collective bargaining for groups of workers other than the enterprise union are optional for the employer, who chooses whether or not to initiate the bargaining procedure. The employer must notify his decision within ten days of the submission of the draft agreement, otherwise the negotiating process is initiated. While noting the Government’s statement that it will take into account the SME’s comments in future legal discussions, the Committee considers that these provisions do not, generally speaking, adequately promote collective bargaining with trade union organizations.

The Committee has also, for several years, been commenting on the following matters:

–           Section 304 of the Labour Code, which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or that are connected to the Government through this Ministry, and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget of either of the last two calendar years, either directly or through duties or taxes. The Committee observes that the Government indicates that it has taken note of these observations and will take them into account in future legal discussions.

–           Section 1 of the Labour Code, which provides that the Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those in which the State contributes or in which it participates or is represented, provided that such officials or workers are subject by law to special regulations. The Committee notes that, according to the Government, Act No. 19673 incorporates officials of the National Congress in the regime established for officials of the State Administration (Act No. 19296), which allows them to set up their own associations of public servants. The Committee nonetheless observes that the abovementioned regime does not envisage a right to collective bargaining, and again points out that, except for officials engaged in the administration of the State, workers in the service of the National Congress and the judiciary, like workers in state enterprises or institutions or those to which the State contributes or in which it participates or is represented, should enjoy the right to collective bargaining.

–           Sections 314bis and 315 of the Labour Code, which provide that groups of workers, other than unions, may submit draft collective agreements. The Committee notes that the Government gives the legislative origin of these provisions and indicates that under them, a union of an enterprise or establishment may, by reason of its trade union status, bargain collectively, whereas groups of workers who join forces in order to negotiate have to meet quorum and percentage requirements established by law in order to form a union in the enterprise or one of its establishments. Although the legislation authorizes collective bargaining for groups of workers, it also lays down a number of minimum conditions and formalities allowing a presumption that there is a collective will to negotiate on the part of the workers involved. The Government adds that, at present, in many enterprises collective agreements and contracts concluded indifferently by groups of workers or trade unions exist side by side. The Committee points out that direct bargaining between an enterprise and its workers, over and above representative organizations where these exist, may in some cases be to the detriment of the principle that collective bargaining between employers’ and workers’ organizations is to be encouraged, and that groups of workers should be able to negotiate collective agreements or accords only in the absence of such organizations.

–           Section 320 of the Labour Code, which places an obligation on employers to notify to all workers in the enterprise the submission of a draft collective agreement so that they can propose draft texts or agree to the draft submitted. The Committee notes that, according to the Government, the purpose of this provision is to allow the greatest possible number of authorized workers to negotiate collectively. The Committee refers the Government to its comment in the previous paragraph.

The Committee notes with regret that, although the Convention was ratified some years ago, there are still numerous restrictions on the exercise of the rights enshrined in the Convention. The Committee expresses the hope that the Government will take the necessary steps to amend the current legislation on all the points mentioned above, in order to allow workers to enjoy fully the safeguards established in the Convention. The Committee requests the Government to keep it informed of all measures adopted to this end.

Lastly, the Committee notes the communication of 28 August 2007 from the International Trade Union Confederation (ITUC) referring to a number of issues examined by the Committee, and to the dismissal of trade unionists and the pressure exerted to get members to give up  union membership and the collective agreement, and threats to workers to get them to sign a collective agreement followed by subsequent pressure for them to conclude individual agreements in one company. The Committee requests the Government to send its comments on the above.

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The Committee notes the Government’s report and the comments made by the National Inter-Enterprise Union of Metallurgists, Energy, Communication and Allied Workers, of 8 January 2006, and the National Confederation of Municipal Employees of Chile (ASEMUCH), of 25 May 2006. The Committee notes that ASEMUCH’s comments relate to draft legislation which would deny organizations of municipal employees the right to collective bargaining, in relation to which the Committee requested the Government in its previous observation to consult the trade union organizations concerned, and it notes the indication by ASEMUCH that the draft legislation has not been reformulated. The Committee notes the Government’s indication that a tripartite working party met in 2005 with the participation of representatives of the Government and of ASEMUCH, but that the negotiations broke down. In this respect, the Committee recalls the importance that has to be attached to the holding of frank and exhaustive consultations on any matter or planned legislation which affects trade union rights and it requests the Government to ensure that the draft legislation in question is in accordance with the Convention.

The Committee notes that the Government has not sent its observations on the comments that it has been making for several years on the following issues:

–           section 304 of the Labour Code does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or those connected with the Supreme Government through that Ministry, or in those in which special laws prohibit that possibility, nor can there be collective bargaining in public or private enterprises or institutions whose budgets have been financed in any of the last two calendar years to the extent of 50 per cent by the State, directly or by means of duties or taxes. The Committee recalls once again that this provision is not in conformity with the Convention. The Committee requests the Government to take the necessary measures to ensure that workers in the above sectors, who are not members of the armed forces, the police or public servants engaged in the administration of the State, benefit from the right to collective bargaining;

–           section 1 of the Labour Code provides that the Code does not apply to officials of the National Congress or the judiciary, nor to workers in state enterprises or institutions, or those in which the State has an interest, participation or representation, provided that such officials and workers have a special status in law. The Committee once again recalls that workers in the service of the National Congress and the judiciary, in the same way as those in state enterprises or institutions or those in which the State has an interest, participation or representation, should benefit from the right to collective bargaining. In this respect, the Committee requests the Government to take measures to ensure that the officials in question, who are not officials engaged in the administration of the State, are guaranteed this right and to inform it in its next report on any measures taken in this respect;

–           sections 314bis and 315 of the Labour Code provide that groups of workers, who are distinct from trade unions, may submit draft collective agreements. In this respect, the Committee emphasizes that the Convention refers to the promotion of collective negotiation between employers or their organizations and workers’ organizations and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of such organizations. Under these conditions, the Committee once again requests the Government to take measures to amend the legislation in this regard and to provide information in its next report on any developments in this respect;

–           section 320 of the Labour Code places the obligation on employers to communicate to all workers in the enterprise the submission of a draft collective agreement so that they can propose draft texts or subscribe to the draft submitted. In this respect, taking into account the comments made in the previous paragraph, the Committee reiterates that this provision is not in conformity with Article 4 of the Convention. The Committee requests the Government to take measures to repeal this provision. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

Finally, the Committee regrets to note that the Government has not provided its observations on the comments made by the Inter-Enterprise Union of Metallurgists, Energy, Communication and Allied Workers (SME) referring to: (1) section 82 of the Labour Code, which provides that “in no event may the remuneration of apprentices be determined by means of collective agreements or contracts or arbitration awards issued in the context of collective bargaining”; (2) section 305(a) provides that workers governed by an apprenticeship contract and those engaged exclusively to work on a specific task, activity or for a specific period may not engage in collective bargaining; (3) section 334(b) provides that two or more unions from different enterprises, an inter-enterprise union or a federation or a confederation may submit draft collective labour contracts on behalf of their members and the workers who support them, but in order to do so it shall be necessary in the enterprise concerned for the absolute majority of the workers who are members to accord representation to the trade union organization concerned for the right to engage in collective bargaining in an assembly by secret ballot and under oath; and (4) section 334bis provides that it shall be voluntary or optional for the employer to negotiate with the inter-enterprise union and in the event that the workers in the enterprise who are members of the inter-enterprise union fail to give their consent they may submit draft collective contracts in accordance with the general rules of Book IV (on collective bargaining). With reference to points 1 and 2, the Committee recalls that, under the terms of Articles 5 and 6 of the Convention, only the armed forces, the police and public officials engaged in the administration of the State may be excluded from collective bargaining. With regard to points 3 and 4, the Committee considers that the provisions in question do not adequately promote collective bargaining with trade union organizations. The Committee therefore requests the Government to take the necessary measures to amend or repeal sections 82, 305(c), 334(b) and 334bis to bring the legislation into conformity with the Convention. The Committee requests the Government to keep it informed of any legislative developments in this respect.

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The Committee notes the Government’s observations concerning the comments made by the National Confederation of Municipal Public Employees of Chile (ASEMUCH) of 17 January and 25 May 2005.

The Committee notes that the above comments concern a draft law denying organizations of municipal public employees the right to collective bargaining. The Committee notes that the Government states that in accordance with section 110 of the Constitution “municipalities, … may create or abolish posts and set pay, as well as establishing the bodies or units provided for by the Organic Constitutional Law and these functions shall be exercised within the limits and requirements set by the Organic Constitutional Law on Municipalities”. The Committee notes that according to the Government, one of the central aspects of the above proposal consists of promoting processes of dialogue and collective participation of public employees with regard to employment and working conditions and remuneration through mechanisms of participation and regulated consultation, such as those provided for in statutes governing other sectors. The Committee notes that, as part of its relations with the Congress, the Senate’s Committee on Governance, Regionalization and Decentralization requested the Government to initiate a phase of negotiation between the workers of ASEMUCH and the Chilean Association of Municipalities (ACHMS) in order to strengthen the project to reduce disputes between the parties and that, according to the Government, the proposed regulation contained in section 110 makes adequate provision for mechanisms for bargaining, participation and regulated consultation. The Committee recalls that, under the terms of Article 6 of the Convention, only public employees engaged in the administration of the State shall be excluded from its scope of application (in particular those working in ministries and other comparable governmental bodies, as well as ancillary staff) (see General Survey on freedom of association and collective bargaining, 1994, paragraph 262). Taking into account the fact that the draft law is still at the consultation stage, the Committee requests the Government to take the measures necessary to ensure that full consultations are carried out with the social partners with a view to finding shared solutions compatible with the Convention.

The Committee notes that the Government has not sent its observations regarding the comments made over the past few years with regard to the following questions:

n      under the provisions of section 304 of the Labour Code, collective bargaining does not exist in the state enterprises dependent on the Ministry of National Defence or those connected with the Supreme Government through that Ministry or in those in which special laws prohibit that possibility, nor can there be collective bargaining in public or private enterprises or institutions whose budgets have been financed in any of the last two calendar years to the extent of 50 per cent by the State, directly, or by means of duties or taxes. The Committee once again recalls that this provision is not in conformity with the Convention and asks the Government to take the measures necessary to ensure that the workers in the above sectors, who are not members of the armed forces, the police or public servants engaged in the administration of the State, benefit from the right to collective bargaining;

n      section 1 of the Labour Code provides that it does not apply to officials of the National Congress or the judiciary, nor to workers in state enterprises or institutions, or those in which the State has an interest, participation or representation, provided that such officials and workers have a special status in law. The Committee once again recalls that workers in the National Congress and the judiciary, in the same way as those in state enterprises and institutions or those in which the State has an interest, participation or representation, should benefit from the right of collective bargaining. In this regard, the Committee requests the Government to take measures to ensure that the officials in question who are not officials in the state administration benefit from this right and to inform it in its next report of any action taken in this respect;

n      under the terms of sections 314bis and 315 of the Labour Code, groups of workers are authorized to submit draft collective agreements. The Committee emphasizes in this regard that the Convention refers to the promotion of collective negotiation between employers or their organizations and workers’ organizations and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of such organizations. In these conditions, the Committee once again requests the Government to take measures to amend the legislation in this regard and to provide information in its next report on any step that has been taken for this purpose;

n      by virtue of section 320 of the Labour Code, the employer has an obligation to communicate to all workers in the enterprise the submission of a draft collective agreement so that they can propose draft texts or subscribe to the one that has been submitted. In this connection, taking into account the comments made in the previous paragraph, the Committee reiterates that this provision is not in conformity with Article 4 of the Convention and requests the Government to take measures to repeal it. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

Finally, the Committee regrets to note that the Government has not provided its observations on the comments made by the National Inter-enterprise Trade Union of Metallurgy, Communications, Energy and Allied Workers (SME) dated 12 May 2004 which refer to the State’s failure to provide workers with sufficient protection against anti-union practices and the inefficiency and delays affecting labour courts and labour inspectors as well as the lack of such inspectors and the consequent prolonging of situations not in conformity with the law. The trade union organization holds that although the provisions of the Labour Code provided for sanctions for cases of anti-union acts, such provisions are not applied in practice and, moreover, the fines are not sufficiently dissuasive. The Committee requests the Government to send its comments in this respect.

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The Committee notes the Government’s observations on the comments made by the Confederation of Municipal Workers of Chile (ASEMUCH) in a communication dated 6 June 2003 criticizing a Bill which would deny the right to collective bargaining of organizations of municipal officials. In its previous direct request the Committee drew the Government’s attention to the fact that municipal officials should enjoy the right to collective bargaining, even though this right may be subject to specific arrangements. The Committee notes the Government’s indications that: (1) there are no laws or regulations violating the provisions of the Convention, but there had merely been an exchange of opinions at one of the meetings of the Technical Board composed of representatives of the Government and of ASEMUCH with the view to exchanging ideas, opinions and suggestions relating to the contents of the regulations covering the new functions entrusted to 350 municipal authorities in the country by the Political Constitution; (2) at the above meeting of the Technical Board, the Government representatives submitted a minute setting out the basic conditions for the participation of workers in the determination of conditions of employment at the municipal level, based on the requirements of Convention No. 151; (3) the minute in question has no legal effect, as it is neither a law nor a regulation and consists of a reminder of the basic ideas relating to the participation of municipal workers in the determination of conditions of employment in the various municipalities in the country; (4) the Government has begun to examine and prepare a Bill covering the functions entrusted by article 110 of the Constitution to all the municipal authorities in the country. The Committee notes with interest that, according to the Government, its proposal adequately protects the established mechanisms for negotiation, participation and consultation which pertain to statutory contractual conditions of service, such as those of municipal officials, and that it once again expresses its full availability for dialogue and agreement with municipal officials.

In this respect, the Committee recalls that, in accordance with Article 6 of the Convention, only public servants engaged in the administration of the State (and particularly those working in ministries and other comparable government bodies) and those acting as auxiliaries to them may be excluded from the scope of application of the Convention. Under these conditions, the Committee reiterates that municipal officials are covered by the scope of application of the Convention and that they should therefore enjoy the right to collective bargaining. The Committee accordingly requests the Government to take measures in this sense and hopes that the Bill referred to above will be the subject of consultation with the trade union organizations concerned.

The Committee also notes the comments made by the National Inter-enterprise Trade Union of Metal, Energy, Communication and Allied Workers (SME), dated 12 May 2004, on the application of the Convention and the Government’s observation thereon.

The Committee intends to examine these comments next year as well as the other matters raised in its previous direct request in the context of the regular reporting cycle on the application of the Convention (see 2003 direct request, 74th Session).

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The Committee notes the Government’s report.

The Committee also notes that the Government has not provided its observations on the comments made on the application of the Convention by the Single Central Organization of Workers (CUT) on 1 February 2001. The Committee notes that the CUT criticizes, on the one hand, certain sections of the Labour Code respecting the exercise of the right to collective bargaining, the provisions of which have already been commented upon by the Committee and, on the other, indicates that in practice there is no possibility of the reinstatement of workers dismissed for trade union reasons and moreover that the legal proceedings are interminable. In this respect, the Committee notes that the legislation (section 174 of the Labour Code) provides for the possibility for the judicial authority to order the reinstatement of a dismissed worker covered by protective labour provisions and that infringements of the provisions on trade union protection are punishable with fines (section 175 of the Labour Code). The Committee requests the Government to forward its comments on the statement by CUT concerning the excessive duration of legal procedures in cases of anti-union discrimination.

1. In its previous direct request, the Committee indicated that, by virtue of section 304 of the Labour Code, collective bargaining does not exist in the state enterprises dependent on the Ministry of National Defence or those connected with the Supreme Government through that Ministry, or in those in which special laws prohibit collective bargaining, nor can there be collective bargaining in public or private enterprises or institutions, whose budgets have been financed during any of the past two calendar years to the extent of over 50 per cent by the State, or by means of duties or taxes. The Committee recalled that this provision is not in conformity with the Convention and requested the Government to take measures to amend section 304 of the Labour Code. The Committee notes the Government’s statement that it has taken note of the above comments. In this respect, the Committee requests the Government to provide information in its next report on any measure that it envisages adopting so that workers in the above sectors, who are not members of the armed forces or the police and who are not engaged in the administration of the State, enjoy the right of collective bargaining.

The Committee also noted that section 1 of the Labour Code provides that it does not apply to officials of the National Congress or the judiciary, nor to workers in state enterprises or institutions, or those in which the State has an interest, participation or representation, provided that such officials and workers have a special status in law. The Committee requested the Government to indicate in its next report whether these categories of workers enjoyed the guarantees laid down in the Convention and, if so, to indicate the legal basis for such guarantees. The Committee notes the Government’s statement that: (1) the officials of the National Congress may establish associations, as they have been included in the legal system established by Act No. 19296, containing provisions governing the establishment, operation and dissolution of associations of officials in the State administration; and (2) the officials of the judiciary continue to be governed by a special status, which prohibits them from establishing trade union organizations and engaging in collective bargaining. In this respect, the Committee recalls that workers in the National Congress and the judiciary, in the same way as those in State enterprises and institutions or those in which the State has an interest, participation or representation, should benefit from the right of collective bargaining. In this connection, the Committee requests the Government to take measures to secure this right for the officials concerned in so far as they are not officials engaged in the administration of the State, and to provide information in its next report on any measure adopted for this purpose.

2. The Committee noted in its previous direct request that, under the terms of sections 314bis and 315 of the Labour Code, groups of workers are authorized to submit draft collective agreements and it requested the Government to indicate whether in practice the groups of workers referred to in the above sections carry out collective bargaining, even where there exist workers’ organizations in the relevant sector. The Committee notes that the Government provides a historical summary of the legislation governing collective bargaining and indicates that: (1) the provisions of section 314bis are in conformity with the criterion endorsed by the Committee on Freedom of Association allowing negotiations with workers who are not organized in a trade union, provided that agreements are reached with representatives of the workers concerned who are duly elected and authorized; (2) section 315 establishes the formal context within which regulated collective bargaining takes place, that is bargaining which gives rise to a collective agreement and under which the initiative of collective bargaining always rests with the workers, through an enterprise trade union or a group of workers formed for this purpose; (3) a trade union in an enterprise or one of its establishments is empowered to engage in collective bargaining by the sole fact of being such an entity, without importance being attached to the number of workers represented, in contrast with groups of workers which are formed for the purposes of negotiations and have to achieve a specific quorum set out in the law; and (4) collective agreements and contracts concluded both by groups of workers formed for this purpose and by trade union organizations currently coexist in many enterprises.

In this connection, the Committee emphasizes that the Convention refers to the promotion of collective negotiation between employers or their organizations and workers’ organizations and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of such organizations. In these conditions, the Committee requests the Government to take measures to amend the legislation as indicated above and to provide information in its next report on any step that has been taken for this purpose.

3. The Committee also noted in its previous comments that, by virtue of section 320 of the Labour Code, the employer has an obligation to communicate to all workers in the enterprise the submission of a draft collective agreement so that they can propose draft texts or subscribe to the one that has been submitted. The Committee considered that a provision of this type does not encourage or promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations, on the one hand, and workers’ organizations, on the other, and requested the Government to take measures to repeal this provision. The Committee notes the Government’s indication that: (1) the purpose of the legislator was to make it possible for the greatest possible number of workers empowered to engage in collective bargaining to do so during the same period; (2) the provision commented upon by the Committee is in harmony with other provisions of the Labour Code which provide that collective bargaining within the enterprise has to be carried out during the same period; (3) these provisions promote order and peace in labour matters, so that the enterprise is not exposed to reiterated bargaining processes which take time and affect performance at both the managerial level and among workers; and (4) its application (which only applies in the case of "regulated bargaining") does not in any way affect the full development and utilization of procedures of voluntary negotiation between the parties. In this connection, taking into account the comments made in the previous paragraph with regard to sections 314bis and 315 of the Labour Code, the Committee reiterates that this provision is not in conformity with Article 4 of the Convention and requests the Government to take measures to repeal it. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

4. Finally, the Committee regrets to note that the Government has not provided its observations on the comments made by the Confederation of Municipal Workers of Chile (ASEMUCH) in a communication dated 6 June 2003. The Committee notes that the comments made by ASEMUCH refer to a Bill which would deny the right to collective bargaining of organizations of municipal officials and indicates that in Chile the practice of macro-social negotiations exists and also of negotiations in decentralized institutions. In this respect, the Committee recalls that, in accordance with Article 6 of the Convention, only public servants engaged in the administration of the State (and particularly those working in ministries and other comparable government bodies) and those acting as auxiliaries to them may be excluded from the scope of application of the Convention. In these conditions, the Committee draws the Government’s attention to the fact that municipal officials should enjoy the right to collective bargaining, even though this right may be subject to specific arrangements.

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The Committee notes the first report sent by the Government and the comments submitted by the Single Central Organization of Chilean Workers (CUT) and other trade union organizations on application of the Convention in communication No. 1 of February 2001. The Committee requests the Government to supply its comments on the matter.

1. The Committee observes that under the provisions of section 304 of the Labour Code, collective bargaining does not exist in the state enterprises dependent on the Ministry of National Defence or those connected with the Supreme Government through that Ministry or in those in which special laws prohibit that possibility, nor that there can be collective bargaining in public or private enterprises or institutions whose budgets have been financed in any of the last two calendar years to the extent of 50 per cent by the State, directly, or by means of duties or taxes. In this respect, the Committee recalls that under the provisions of the Convention the right to bargain collectively may be prohibited only in regard to the armed forces, the police or public servants engaged in the administration of the State, particularly the officials in ministries and other comparable governmental bodies. In this regard, the Committee requests the Government to take measures to bring section 304 of the Labour Code into conformity with the Convention.

The Committee observes that section 1 of the Labour Code provides that the Code does not apply to officials of the National Congress or the judiciary, nor to workers in state enterprises or institutions, or those in which the State has an interest, participation or representation, since these officials and workers have a special status in law. The Committee requests the Government to indicate in its next report whether these categories of workers enjoy the guarantees laid down in the Convention and, if so, to indicate the legal basis.

2. The Committee observes that under the provisions of section 314bis and section 315 of the Labour Code, groups of workers are authorized to submit draft collective agreements. In this matter, the Committee recalls that Article 4 of the Convention refers to the need to adopt appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment and that, besides, the Collective Agreements Recommendation, 1951, (No. 91), gives priority, as one of the parties to collective bargaining, to representative workers’ organizations, referring to the representatives of the workers concerned only in the absence of such organizations. In this regard, the Committee requests the Government to inform it whether in practice the groups of workers mentioned in the sections concerned carry out collective bargaining even where there exist workers’ organizations in the relevant sectors.

With reference to the foregoing paragraph, the Committee also observes that the Committee on Freedom of Association requested the Government to take measures to modify legislation to clearly prevent the practice of "multiple individual contracts" (or contracts of adhesion) when there is a representative trade union and to see to it that direct negotiation with workers does not create difficulties for, or weaken the position of, trade unions (see 325th report of the Committee on Freedom of Association, paragraphs 216-237). The Committee shares this point of view.

3. Finally, the Committee notes that under the provisions of section 320 of the Labour Code the employer has an obligation to communicate to all workers in the enterprise the submission of a draft collective agreement so that they can present drafts or subscribe to the one submitted. In this regard, the Committee considers that a provision of this type does not encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations. The Committee requests the Government to take measures to repeal this provision.

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The Committee notes the first report supplied by the Government.

The Committee notes with satisfaction that, between the ratification of the Convention and the provision of the first report, the National Congress amended the Labour Code to give better effect to the Convention. In practical terms, through the amendments to the Labour Code, protection has been strengthened against acts of anti union discrimination and interference and collective bargaining is permitted for temporary and casual workers. The Committee notes that this process was preceded by the technical assistance of the Office at the request of the Government.

The Committee is also raising a series of matters concerning the application of the Convention in a direct request.