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

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Chile (Ratification: 1971)

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee recalls that it has been referring for several years to Act No. 20.005 amending the Labour Code by including provisions on sexual harassment, which affords more limited protection than that just envisaged in the Committee’s general observation of 2002 in terms of the persons protected, perpetrators, the scope of application and victim protection procedures. In its previous comments, the Committee noted the Bill of 24 January 2013 on sexual harassment, which provides for the inclusion in the Penal Code of section 364, worded as follows: “Any person who seeks favours of a sexual nature, for themselves or for another person, within the context of a working, teaching or sporting relationship or the provision of services, either continuous or habitual, and who through such behaviour creates for the victim an objectively intimidating or hostile situation, shall be liable as the perpetrator of sexual harassment to a sentence of short-term imprisonment.” The Committee requested the Government to provide information on the stage of the parliamentary procedure for the examination of the Bill and on the application in practice of Act No. 20.005 on sexual harassment, as well as any amendment envisaged in this regard. The Committee notes that, in its report, the Government indicates that the Ministry of Labour and Social Welfare is evaluating alternatives with a view to improving the regulations on sexual harassment that are currently in force. In this regard, the Committee recalls that addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts” and not the full range of behaviour that constitutes sexual harassment in employment and occupation. The Committee also considers that legislation under which the sole redress available to victims of sexual harassment is the possibility to resign while retaining the right to compensation, does not afford sufficient protection for victims of sexual harassment, since it in fact punishes them and could dissuade victims from seeking redress (see 2012 General Survey on the fundamental Conventions, paragraph 792). The Government also refers to a Bill on women’s right to a life free of violence. The Committee notes that, according to information available on the website of the House of Representatives of Chile, this Bill entered its legislative procedure in the House of Representatives in January 2017 and is currently going through its first constitutional procedure (Bulletin No. 11077-07). The Committee also notes the Government’s indication that, according to the registers of the Directorate of Labour, 101 allegations of sexual harassment in the workplace were recorded between January and April 2017, compared to 135 complaints for the same period in 2018. The Committee requests the Government to provide information on any legislative developments to combat sexual harassment which are currently under examination by the Ministry of Labour and Social Welfare, and requests the Government to continue providing information on the complaints of sexual harassment made to the National Directorate of Labour and the courts, the penalties imposed and compensation awarded.

Articles 1(1)(b) and 2. Discrimination on the ground of disability. In its previous comments, the Committee asked the Government to provide information on the effectiveness and results of the programmes and measures adopted with a view to the integration of persons with disabilities in the labour market, and on the stage that has been reached in the parliamentary examination of the Bill to amend the Labour Code with a view to prohibiting discrimination at work on the ground of disability. The Committee notes the information provided by the Government on the various programmes conducted by the National Training and Employment Service (SENCE), including the More Skills and Regular Education for Young People and Women Programme (Programa Más Capaz y Línea Regular para Jóvenes y Mujeres), and on those carried out under the collaboration agreement between SENCE and the National Disability Service (SENADIS) with a view to increasing the participation of persons with disabilities in the workplace. The Committee also notes the Government’s indication that Act No. 21.015 encouraging the integration of persons with disabilities in the labour market was published on 15 June 2017, which:

• (i) reserves 1 per cent of jobs in state bodies and private enterprises that have 100 or more workers or employees for persons with disabilities or recipients of an invalidity pension under any social security regime;
• (ii) amends the Administrative Statute prohibiting any arbitrary discrimination that leads to exclusions based on disability; and
• (iii) prohibits the establishment of remuneration lower than the minimum income in an employment contract for a person with intellectual disabilities.

The Committee also notes with interest that Act No. 20.940 modernizing the labour relations system, published on 8 September 2016, extends the list of criteria of discrimination contained in section 2 of the Labour Code, by adding “disabilities” as a criterion. The Committee requests the Government: (i) to provide information on the application in practice of Act No. 21.015 encouraging the integration of persons with disabilities in the labour market, and its impact on the integration of men and women with disabilities in the labour market; and (ii) to continue monitoring the results of the various measures adopted to promote equality of opportunity and treatment of persons with disabilities in employment and occupation, and to provide information in this regard.

Article 2. National equality policy. The Committee once again requests the Government to provide information on the specific measures and plans adopted or envisaged to combat discrimination on the basis of all the prohibited grounds of discrimination, and particularly racial discrimination, especially against indigenous peoples, including information on the effectiveness of the measures taken and the results achieved.

Promotion of equality between men and women in employment and occupation. In its previous comments, the Committee asked the Government to continue providing information, particularly on: (i) the measures adopted or envisaged within the framework of the Plan for Equality of Opportunity for Men and Women 2011–20 to increase the participation rate of women in the labour market and to reduce occupational segregation; (ii) the implementation of the Equal-Conciliation (Iguala-Conciliación) Programme; (iii) the specific activities undertaken by the National Service for Women (SERNAM); and (iv) the implementation in practice of Acts No. 20.595 of 2012 creating a women’s employment subsidy, No. 20.455 of 2011 establishing postnatal parental leave of six months in co-participation with the father and No. 20.399 of 2009 on the provision of child day-care centres in enterprises with over 20 workers. The Committee notes that the Government refers to the fourth National Plan on Equality between Men and Women and observes that this Plan was published in March 2018. The Plan includes specific objectives on gender equality in the world of work by defining goals, indicators and related deadlines. These objectives include: reducing inequalities in employment and the economy; tackling gender stereotypes that affect industrial relations and limit women’s career opportunities; promoting conciliation and joint responsibility between men and women in their personal, family and working lives; and guaranteeing women’s access to land and water supplies, especially for peasant, rural and indigenous women, and the sustainable management of natural resources. With regard to the implementation of the abovementioned legislative programmes and regulations, the Committee notes the Government’s indication that a Bill aimed at guaranteeing the “right to universal child day-care centres” for working mothers and fathers has been drafted, which will lower the costs associated with hiring women to provide childcare. The Committee observes that this Bill entered Congress in August 2018 (Bulletin No. 11999-13). The Committee also notes the information provided by the Government on: the Gender Parity Initiative, launched in 2016 and aimed at, inter alia, increasing women’s participation in the world of work through the use of a gender focus in enterprises’ human resources policies; the initiatives of the Regional Forums on Women and Mining aimed at encouraging women’s participation in mining; the SERNAM programmes, including the Good Labour Practices and Decent Work for Gender Equity Programme, the Women Heads of Households Programme, which seeks to improve the employability of women heads of households and enabled 2,417 women to access employment in 2017, and the Equal-Conciliation Programme. With regard to the impact of these measures, the Government reports that the labour force participation rate for women in 2018 is 49.1 per cent, while the rate for men is 70.7 per cent, and indicates that the participation gap has been decreasing in recent years, although another 1.5 million women would have to enter the labour market to match the current participation of men. Moreover, the Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at the persistence of horizontal and vertical occupational segregation and the concentration of women in the informal sector, in lower-paid service sectors and in temporary and part-time work (CEDAW/C/CHL/CO/7, 14 March 2018, paragraph 36(c)). In this respect, the Committee also notes that, according to the fourth National Plan on Equality between Men and Women, women predominate in care and service-related areas, such as domestic service (84 per cent) and teaching (73 per cent), but represent a minority in areas considered to be knowledge-intensive, such as information and innovation. With respect to vertical segregation, the same source indicates that only 27.4 per cent of managerial positions in enterprises or institutions are held by women. The Committee requests the Government to continue its efforts to promote equality of opportunity and treatment between men and women in employment and occupation, and to provide information on the impact of the measures adopted on the participation of women in a wider range of jobs, at all levels, and on the reduction of the current horizontal and vertical occupational segregation. The Committee also asks the Government to report any developments relating to the adoption of the Bill aimed at guaranteeing the “right to universal child day-care centres” and provide information on the application in practice of Acts Nos 20.595, 20.455 and 20.399.

Public sector. In its previous comments, the Committee encouraged the Government to take measures to examine the reasons that prevent women from gaining access to managerial positions. It also asked the Government to continue taking specific measures with a view to ensuring equality of opportunity for men and women in access to managerial positions in the central public administration and to provide information in this regard. The Committee notes that the Government refers, among others, to the study on the conditions and representation of women in the public sector that was conducted in 2017. The Committee observes that the study analyses the main trends in the application, selection and appointment of women to senior managerial positions and the professional practices programme, and seeks to understand the mechanisms that produce and reproduce gender inequalities in the public sector. According to the study, in 2017, women represented 58 per cent of the central government’s employees, while women held 43 per cent of managerial positions (government authorities, professional managers and non-professional managers). Women in the public senior management system accounted for 30 per cent of acting senior managers. The Committee notes that the study concludes that one of the more complex aspects of women’s access to the labour market relates to the permanent separation of productive and reproductive roles – relegated to men and women, respectively – or to the emergence of a new situation in which women occupy both roles, as a result of new socio-economic trends combined with a patriarchal culture that requires and expects women to remain in charge of family care. The Committee requests the Government to report the measures adopted or envisaged as a result of the conclusions adopted in the study on the conditions and representation of women in the public sector, with a view to guaranteeing equality of opportunity between men and women in the public administration, and to continue supplying statistical data on the occupational levels, particularly decision-making positions, of men and women in the public sector.

Pensionable age of women. The Committee recalls that, in its previous comments, it referred to Legislative Decree No. 3500 of 1980, which provides that women of 60 years of age and men of 65 years of age shall be entitled to an old-age pension, and to Act No. 20.255 of 2008, which included a provision in the Legislative Decree under which women over the age of 60 and under 65 who have not retired shall be entitled to an invalidity pension and the related supplement to survivors’ pensions. The Committee also noted that the proposals contained in the final report of the Presidential Advisory Commission on the Pensions System of September 2015 include the equalization of the retirement age for men and women. The Committee therefore asked the Government to provide information on the manner in which these provisions are applied and on the status of the proposal by the Presidential Advisory Commission on the Pensions System to equalize the retirement age for men and women. The Committee notes the Government’s indication that, under the current regulations, persons enrolled in the pension scheme are entitled (but not obliged) to receive a pension once they have reached the legal retirement age: 65 years of age for men and 60 for women. With regard to the proposal by the Presidential Advisory Commission on the Pensions System to equalize the retirement age for men and women, the Government indicates that this proposal is an important step in the discussions that are taking place in the country, but considers that the Chilean labour market is not adequately prepared to raise the retirement age for both men and women, as a minimum level of employability for this segment of the population cannot be ensured. The Government adds that, without prejudice to the foregoing, since the enactment of Act No. 20.255 of 2008, public policies seeking to equalize the situation between men and women have been implemented, such as the extension of invalidity and survivors’ insurance coverage for women between the ages of 60 and 65. The Committee takes due note of this information and requests the Government to continue providing information on the measures adopted in the framework of the public policies seeking to equalize, in practice, the situation between men and women with regard to pensions and on any further developments in this regard.

Application in practice of the procedure for the protection of fundamental rights. The Committee notes the information provided by the Government on the court rulings issued in the context of the special procedure for the protection of the fundamental rights of workers established by Act No. 20.087. The Committee requests the Government to continue providing information on court rulings and administrative decisions within the context of the procedure for the protection of fundamental workers’ rights in cases of alleged labour discrimination, together with an assessment of the general operation of the procedure, including the number of complaints made within the context of the procedure, the reasons for the complaints, the outcomes and sanctions imposed.