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

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

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

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

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

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

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

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

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

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

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

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

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

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

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