Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the observations made by the National Association of Public Employees (ANEF), the Association of Employees of the National Women’s Service (SERNAM), the College of Teachers of Chile AG, the National Confederation of Trade and Services and the Confederation of Unions in the Banking and Financial System, dated 15 September 2011. The Committee notes that, according to the trade union organizations, the current private pensions system, which is based on a fully funded scheme, is discriminatory in relation to women due to the use of differentiated mortality scales for men and women. As a result of the use of these scales, a man and a woman worker with equal accumulated funding who take retirement at the same age would receive annuities of differing amounts solely based on sex. The Committee notes the Government’s indication in its reply that the use of differentiated scales is due to the life expectancy of women being higher and that the pensions of those affiliated to the private system are financed by their contributions. The Government adds that if the system of unisex scales were to be applied, women’s pensions would increase, but would be exhausted more rapidly. The Government adds that the Presidential Advisory Council for Pensions Reform assessed whether unisex mortality tables should be introduced and found that it was not to be recommended for various reasons, including the following: the risk that may exist that the reserves constituted by insurance companies are not adequate; the implication of a cross subsidy between men and women; and the lack of experience of the application of unisex tables in other countries with individually funded pension systems. Noting that the use of differentiated mortality scales has the consequence that women receive lower pensions than men due to their longer life expectancy, which could be discriminatory, the Committee requests the Government to assess the real impact of differentiated scales based on their implementation at present on the amounts of the pensions actually received by pensioners and to provide information in this regard.

Article 1 of the Convention. Legislation. The Committee notes the adoption of Act No. 20609 of July 2012 establishing measures to combat discrimination. The Committee notes that the Act is of broad application, covering all persons, and that its objective is to introduce judicial machinery to address cases of discrimination against any person. The Act lays down the following grounds of discrimination: race or ethnic origin, nationality, socio-economic situation, language, ideology or political opinion, religion or belief, trade union membership or participation in industry organizations or non-membership or participation, sex, sexual orientation, gender identity, civil status, age, family rank, personal appearance and illness or disability. While noting the inclusion of new criteria of discrimination, the Committee observes that the criteria of colour, national extraction and origin are not included in the list set out in the Act, even though they are included in section 2 of the Labour Code. The Committee requests the Government to indicate the manner in which the Labour Code and Act No. 20609 are applied in practice and their interrelation in terms of the criteria established and the remedies available to victims. Please also provide information on the implementation of the Act in practice in relation to employment and occupation.

The Committee also notes the observations of the Trade Union Federation of the Category “A” of Supervisors and Professionals of CODELCO Chile (FESUC) of 14 June 2012 indicating that the workers in CODELCO recruited since 2010, who include more women than those recruited previously, do not receive the same remuneration or have the same conditions of work as those recruited prior to 2010. The FESUC adds that the Code of Conduct adopted by the enterprise in 2011 contains the following phrase: “I am aware that the reputation of CODELCO may be prejudiced if I participate in political activities while I am a worker in the enterprise, even if I do so outside working hours”. The Committee requests the Government to provide its observations in this connection.

Discrimination based on sex. The Committee has been observing for several years that, with a view to granting spouses equal rights, it is necessary to amend section 349 of the Code of Commerce, which provides that married women who at the time of their marriage did not decide to make an agreement with their husband choosing the separate property regime may only enter into a commercial partnership agreement with the special permission of their husbands. In this respect, the Committee notes the Government’s indication that on 5 April 2011 the President of the Republic forwarded to the Chamber of Deputies a Bill to amend the Civil Code and other legislation to regulate the property regime for marriage, which was based on two earlier bills. The new Bill, which is currently in the first stage of the constitutional procedure before the Chamber of Deputies, provides for equality before the law for husbands and wives, the full capacity of both spouses and the economic protection of the spouse who has cared for the children or the household, and has accordingly worked less. The Committee requests the Government to continue providing information on the progress of the Bill to modify the property regime established in the Civil Code and to indicate whether it envisages the amendment of section 349 of the Code of Commerce so that women can enter into commercial partnership agreements without special permission from their husbands.

Bill on discrimination. The Committee notes the recent approval by the Senate of a Bill to combat discrimination. The Committee requests the Government to provide information on the progress of the Bill before Parliament and to provide a copy of the text as soon as it has been enacted.

Persons of African descent. The Committee noted previously, in the context of its examination of the application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), the Government’s indication of the existence of a Bill recognizing the ethnic group of persons of African descent. The Committee requests the Government to provide information on the stage of the parliamentary process with regard to this Bill and to provide a copy of it once it has been adopted.

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