Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee notes the observations on the application of the Convention in law and practice (including allegations of violations in the public, food, transport and copper sectors) provided by the following organizations: the National Association of Fiscal Employees (ANEF), received on 29 August 2019; 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; as well as the observations of the Federation of Workers’ Unions of Chile (FESINTRACH), received on 2 September 2019, the No. 1 Promoter CMR Falabella Enterprise Union, received on 20 September 2019, and the Single Central Organization of Workers of Chile (CUT), received on 26 October 2019. The Committee requests the Government to provide its comments in this regard. Noting that the Government has not replied to the various requests made in its previous comments, including with regard to the multiple observations made by social partners in 2016, the Committee trusts that it will receive the missing information in the next report.

The Committee notes that a complaint has been 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, which has been declared receivable and is pending before the Governing Body.

Articles 2 and 3 of the Convention. Legislative matters not covered by the reform of the Labour Code. In its previous comment, while noting with satisfaction the amendment or repeal of various provisions of the Labour Code which were not in conformity with the Convention, the Committee observed that the following provisions had not yet been brought into conformity with the Convention;

• -Amendment of 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 party political activities. In its previous comments, the Committee welcomed the submission of a draft constitutional amendment in October 2014 to remove these restrictions, but noted that the draft had not been approved.
• -Amendment of section 48 of Act No. 19296, which grants broad powers to the Directorate for Labour for the supervision of the accounts and financial assets and property of associations. In its previous comment, the Committee noted the Government’s indication that the approach adopted by the Directorate for Labour in that regard is consistent with the principles of freedom of association and leaves it to organizations to control their own accounts, financial assets and property; and that a protocol agreement had been agreed between the Government and the public sector round-table of 2014 which included the commitment to address possible amendments to Act No. 19296.
• -Repeal of section 11 of Act No. 12927 on the internal security of the State, which provides that an interruption or strike in certain services may be penalized with imprisonment or banishment, and the amendment of section 254 of the Penal Code, which establishes criminal penalties in the event of the interruption of public services or public utilities or dereliction of duty by public employees. In its previous observation, the Committee noted the Government’s indication that these provisions had not been applied and recalled that no penal sanction should be imposed on a worker for participating peacefully in a strike, which is merely exercising an essential right, and therefore that sentences of imprisonment or fines should not be imposed.

The Committee observes that in its latest report the Government has not provided any further information on the application, amendment or repeal of these provisions, and that the observations of the various social partners continue to denounce the incompatibility of these provisions with the Convention. The Committee once again expresses the hope that the Government will take the necessary measures in the very near future to bring these provisions into conformity with the Convention and requests it to report any developments in this regard.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Exclusion from strike action of enterprises declared to be strategic. Section 362 of the Labour Code, under the heading of the determination of enterprises in which the right to strike may not be exercised, provides that a strike may not be called for workers providing services in corporations or enterprises, irrespective of their nature, purpose or function, which provide services of public utility or the cessation of which would cause serious damage to health, the national economy, the provision of supplies to the population or national security. In its previous comment, the Committee recalled that this definition of enterprises in which the right to strike cannot be exercised, to be approved jointly by various ministries and subject to appeal to the Court of Appeal, potentially covers services which go beyond the definition of essential services in the strict sense of the term (those the interruption of which may endanger the life, personal safety or health of the whole or part of the population). Recalling that the prohibition of strikes relating to the services provided should be limited to essential services in the strict sense of the term, the Committee reiterated that the concepts of public utility and of damage to the economy are broader than that of essential services. The Committee also observed that “services of public utility” would already be covered by the system of minimum services established in section 359, which is distinct from the concept of essential services in the strict sense of the term.

Observing that the Government has not provided the requested information on the application of this provision in practice, the Committee notes that, according to the indications of the ITUC, under the terms of this provision a list was approved in August 2017 of 100 enterprises considered to be strategic and excluded from the exercise of the right to strike, which include enterprises in the health and energy sectors, and that 14 unions have lodged appeals in this regard with the Court of Appeal. The Committee also notes that in August 2019 a new list was published of enterprises considered to be strategic and excluded from the exercise of the right to strike (43 enterprises were removed from the former list of 100 enterprises, and 15 new enterprises were added). While considering that section 362 of the Labour Code should be amended to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee once again requests the Government to provide information on the application in practice of section 362 of the Labour Code, with an indication of the various categories of services provided by the enterprises excluded from the exercise of the right to strike, and the action taken in relation to any complaints lodged in this respect. The Committee recalls that, without calling into question the right to strike of the large majority of workers, a negotiated minimum service may be established for public services of fundamental importance that are not essential services in the strict sense of the term.

Replacement of workers. In its previous comment, while on the one hand the Committee noted with satisfaction the introduction in the Labour Code of a prohibition to replace striking workers, as well as the sanctions in the event of such a replacement (sections 345, 403 and 407) on the other hand, it noted that, according to the CGTP, other recently introduced provisions could undermine or introduce uncertainty into such prohibition to replace striking workers. The CGTP referred, in particular, to the possibility envisaged in new section 306 of the Labour Code for an enterprise that has subcontracted work or services to another enterprise to carry out directly or through a third party the subcontracted work or services interrupted due to a strike (in this regard, the CGTP alleged that over 50 per cent of workers in the country work in subcontracting enterprises). The Committee requested the Government to provide its comments on the observations of the CGTP and to report on the application in practice of sections 306, 345, 403 and 407, including the sanctions imposed for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on the workers or services interrupted due to a strike. The Committee notes that the Government reports various legal opinions issued by the Directorate for Labour concerning these provisions, including an opinion that it is not in accordance with the law for an enterprise providing temporary services to provide workers to a principal enterprise for the performance of work or services which have been interrupted due to a strike by workers in the enterprise contracted to perform them. The Committee welcomes these clarifications, while noting that the Government has not provided further information on the application in practice of the above-referred provisions. The Committee also notes that the issue of the replacement of workers is the subject of additional observations by the social partners. In this respect, the CTC indicates that section 403 of the Labour Code supports the internal replacement of striking workers, and the CGTP denounces the fact that the authorities have allowed the replacement of striking workers in the public passenger transport sector in Santiago de Chile. The Committee requests the Government to provide its comments on the observations of the social partners on these matters, and to provide further information on the application in practice of sections 306, 345, 403 and 407, including on the sanctions applied for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on workers or services interrupted due to a strike.

Exercise of the right to strike beyond the framework of regulated collective bargaining. In previous comments, the Committee noted that, in general terms, the exercise of the right to strike is regulated exclusively within the framework of regulated collective bargaining. In this respect, the Committee referred to the recommendations made to the Government by the Committee on Freedom of Association (CFA), in which: (i) given that existing legislation does not permit strike action outside the context of the collective bargaining process, the CFA requested the Government, in consultation with workers’ and employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of freedom of association (Case No. 2814, 367th Report, paragraph 365); and (ii) recalling the principle that the occupational and economic interests that workers defend through the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the enterprise which are of direct concern to the workers, the CFA requested the Government to take all the necessary measures, including legislative measures if necessary, to uphold this principle, and to submit the legislative aspects of the case to the Committee of Experts (Case No. 2963, 371st Report, paragraph 238).

In this regard, certain social partners (see for example, the observations of the ITUC in 2016, the CGTP in 2016 and 2019, and the CTC in 2019) have been denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining. The Committee also noted that a ruling of 23 October 2015 of the Court of Appeal of Santiago held that the sole fact that the law regulates strike action in one instance, that is in the context of regulated collective bargaining, cannot lead to the conclusion that outside that context strikes are prohibited, based on the understanding that matters that the legislature has failed to regulate or define cannot be held to be prohibited (the Committee refers to other recent rulings along these same lines, such as the ruling by the Labour Court of Antofagasta of 6 August 2019, finding that the right to strike is an essential right regulated by the Convention and that the Supreme Court has found that the right to strike is guaranteed even outside the framework of collective bargaining procedures). In light of the judicial decisions referred to above, the Committee once again requests the Government to provide its comments on the observations of the social partners denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining and to provide information on any measures taken in relation to the recommendations referred to in this regard.

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