Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments from the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning the application of the Convention and also the Government’s reply, which indicates that its observation will be sent as soon as possible. The Committee requests the Government to send its observations in this respect, and also on the comments made in 2009 by the ITUC, the National Inter-Enterprise Union of Airport Workers of Chile and other unions in various sectors. The Committee also notes the comments from the Confederation of Production and Commerce (CPC) dated 10 August 2011 concerning the position of the Employers’ group at the ILO regarding the right to strike. The Committee notes that the draft reform of the Constitutional Organic Act on municipalities, No. 18695, which dealt with the right to strike, was rejected in the Chamber of Deputies.

Articles 2 and 3 of the Convention. The Committee recalls that it has been requesting the Government for several years to amend or repeal various legislative provisions, or to take measures to ensure that certain workers are afforded the guarantees laid down in the Convention. Specifically, in its previous comments, the Committee requested the Government to take steps to:

• – repeal section 11 of Act No. 12927 concerning the internal security of the State, which provides that any interruption or collective suspension, stoppage or strike in public services or public utilities, or in production, transport or commercial activities which is not in accordance with the law and is detrimental to public order or to compulsory legal functions or is damaging to any vital industries shall constitute an offence and be penalized with imprisonment or relegation;
• – 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 of a political party and that the law shall establish penalties for trade union officials who engage in political party activities;
• – amend sections 372 and 373 of the Labour Code, under which an absolute majority of workers in 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 in 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 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 process of negotiation, and the requirement to pay a bond of four units of account (UF) for each worker hired as a replacement. The Committee notes that the Government recalls that the possibility of replacement of striking workers is generally prohibited, being an exceptional facility granted to the employer subject to compliance with strict conditions. The Committee recalls that the replacement of striking workers should be limited to cases in which strikes may be restricted or even prohibited, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State, in essential services in the strict sense of the term and in situations of acute national or local crisis, or in the event of non-compliance with a minimum service;
• – amend section 384 of the Labour Code, which provides that strikes may not be called by workers in enterprises which provide public utility services, or services the interruption of which would seriously endanger the health, public supply, the national economy or national security (section 384(3) 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 notes the Government’s reference to Case No. 2649 examined by the Committee on Freedom of Association (CFA) and its indication that the Comptroller-General of the Republic has stated that this restriction on the declaration of a strike would be justified in view of the fact that: (a) the employees work in certain entities whose operation must be ensured on a continuous basis for reasons of public interest and on account of the principle of the State’s readiness for service referred to in article 1(3) of the Constitution, which obliges the State to promote the common good; (b) in order to apply this prohibition, since no distinctions are made regarding the conditions in which part of the work is to be executed, the respective entities have recourse to the subcontracting system; and (c) ILO Conventions Nos 87, 98 and 151 do not contain any statements or requirements specifically concerning the situation of strikes in entities that provide essential services for the public. While noting this information, the Committee recalls that the definition of services in which strikes may be prohibited, and also 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; and that the aforementioned list includes certain private port terminals which cannot be considered as essential services in the strict sense of the term;
• – amend or repeal section 385 of the Labour Code, which provides that, in the event of a strike which by reason of its nature, timing or duration causes 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. The Committee notes the Government’s statement that the Directorate of Labour, which is responsible for defining the substance and scope of labour standards, stated in opinion No. 5062/093 of 26 November 2010 that the concept of “essential services” contained in section 380(1) of the Labour Code should be interpreted as “services the interruption of which could endanger the life, personal safety or health of all or part of the population”. The Committee observes that the definition of services with respect to which the President of the Republic can order the resumption of work goes beyond that of essential services in the strict sense of the term;
• – ensure in law and in practice that agricultural workers enjoy the right to strike;
• – amend section 254 of the Penal Code, which provides for criminal penalties in the event of interruption of public services or public utilities or dereliction of duty by public employees;
• – amend section 48 of Act No. 19296, which grants broad powers to the Directorate of Labour for the supervision of the accounts and financial and property transactions of associations.

While welcoming the Government’s statement that it notes the Committee’s observations and reiterates its willingness to incorporate into the relevant national legislation all the necessary provisions to ensure prompt alignment with the Convention, the Committee hopes that the Government will take all the necessary measures in the near future 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 any measures taken in this respect. The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

Finally, the Committee has been informed of the preparation of a draft reform of the Political Constitution. The Committee requests the Government to provide information in its next report on any progress made in this respect and on the possible inclusion of provisions in amended legislation on the reformed Political Constitution relating to trade union rights.