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

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative, the Under Secretary of Social Welfare, stated that this Government recognised the facts mentioned in point No. 1 of the Committee of Experts' observations. In 1991 a draft law had been placed before the National Congress to rectify the situation of workers dismissed for political reasons under the military regime; this draft was being debated in the Chamber of Deputies. The draft provided special benefits for workers dismissed for political reasons, including the possibility of early retirement in certain circumstances; an improved calculation of the qualification period for acquiring the right to a pension; the right to obtain a pension at 65 without being in permanent employment; and facilities for obtaining an ex gratia pension. An agreement had been reached on 6 June 1992 between the Government and the Comando de Exonerados de Chile aimed at a substantial improvement of the content of the draft law currently under discussion. Under the agreement, persons dismissed for political reasons would have a right to new improvements in pensions granted to them together with the opportunity to increase their amount. Access to pensions would be considered together with means for easing reintegration of workers dismissed from the public service and improved access to opportunities for vocational training and small-scale enterprises. Tens of thousands would benefit from the draft law, by which the Government was seeking to compensate for the economic disadvantages and moral injury suffered by workers who had been dismissed for political reasons. It should be emphasised that since 10 March 1990 there had been no case of dismissal for political reasons.

The Employers' members reviewed the Committee of Experts' observations and welcomed the positive information contained in it as well as the statement of the Government representative. They were fully confident that the compensation referred to by the Committee of Experts would be granted by the draft legislation mentioned. As concerned the powers of rectors of the universities to impose disciplinary sanctions for political reasons, it was desirable that such provisions should be repealed and it was hoped that the repeal, if not already carried through, would be effected as soon as possible.

The Workers' members approved of the progress reported, but pointed out that the Government was announcing measures already announced last year. They sought more precise data as to implementation of the measures announced; they urged the Government to take all necessary steps promptly.

The Government representative indicated that the agreement between his Government and the Comando de Exonerados de Chile was a concrete fact to be adopted in legal form by the National Congress. This new agreement demonstrated a desire for dialogue and concerted action. The Government would provide information of the Committee of Experts' third point 3 in its next report.

The Committee noted with interest the information supplied by the Government. It welcomed the progress attained on the points raised by the Committee of Experts, notably the submission to the National Congress of a Bill to amend existing legislation. The Committee hoped to be in a position, at one of its next meetings, to conclude that legislation and practice were in complete conformity with the Convention.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

A Government representative stated that the Constitution of his country prohibited any form of discrimination which was not based upon individual capacity or ability and that this prohibition was guaranteed by an effective right to appeal to the courts. He recalled that Chile had appeared in the list of cases of progress in relation to this Convention, in view of the repeal of legal provisions which had in the past been the object of comments by the Committee of Experts. Referring to section 157(6) of the Labour Code. which the Committee of Experts had cited in its observation, he stated that this particular reason for termination of an employment contract referred to acts which had an effect on work and that there had been persons found guilty of having violated Act No. 12927 on state security whose employment contracts had remained in force even in state enterprises. In reference to article 8 of the Constitution, he stated that, in the eight years that provision had been in force, it had been applied only once to a person who was not an official and who had been found by the Constitutional Court to have engaged in constitutionally impermissible acts following a trial on charges of agitating for basic change by means of the use of force. As regards Act No. 18662 which issued regulations under article 8 of the Constitution, he indicated that this Act had the very purpose of defining the scope of the constitutional provision with greater clarity and precision. He then gave indications which, in the view of his Government, would clarify the concerns voiced in relation to article 8 and its regulatory Act. The first referred to freedom of opinion which existed in Chile and which extended as well to persons proposing significant reforms of the Constitution and of the institutions established under it. He then gave indications which, in the view of his Government, would clarify the concerns voiced in relation to article 8 and its regulatory Act. The first referred to freedom of opinion which existed in Chile and which extended as well to persons proposing significant reform of the Constitution and of the institutions established under it. He recalled that ten or so political parties, mostly opposition parties, had been founded in Chile. He stated in the second place that exclusions resulting from article 8 always required a court ruling and, in the third place, that article 8 penalised acts and not a person's intent.

With regard to the powers granted to university rectors under certain decrees whose repeal the Committee of Experts had called for, he stated that, although there was no uncertainty in the situation, the Government would submit the matter to the competent authorities for consideration. In the case of the University of Chile, he affirmed that the rector of the university had given guarantees in relation to the just and equitable exercise of the powers conferred and that the special powers would be repealed automatically before the end of 1988. In reference to section 55 of the Statute of the University of Chile. he stated that in Chile no one was expelled from the university on the grounds of his or her political opinion, since that would be incompatible with the legal standards in force.

The Workers' members recalled that the application of this Convention by Chile had long been discussed by the Conference Committee, just as it had long been of concern to the Committee of Experts. The dialogue had been going on since at least 1978. The acceptance of dialogue was positive, but the situation in the country with regard to freedoms in general, and the application of this Convention in particular, were a cause for serious concern. While from time to time some progress or other act of goodwill could be noted from one year to the next, the situation remained truly worrisome. The Workers' members congratulated the National Grouping of Workers (CNT), who knew the situation from inside, for daring, under current political circumstances, to present comments which could in turn assist the Committee of Experts in relation to the application of the Convention. Where the Workers' members had looked for possible changes, the Government had instead confirmed a number of points. They could not accept the Government's argument that a legal provision which was recognised as being in non-conformity with the Convention was not being applied in practice and therefore had been tacitly repealed. As long as such legislation remained on the books. its misuse remained a possibility. This meant that article 8 of the Constitution (prohibiting any act of any person or group intended to propagate, inter alia, a doctrine advocating a conception of society, the State or law "of a totalitarian character or based on class warfare") was a catch-all for anyone who did not agree with the regime in power. The Workers' members, well aware of the dangers of applying criteria of political opposition in access to committed such offences were barred for ten years from access to any public post or position, and so forth. As the Committee of Experts had noted, this was in contradiction to the Convention. Although the Government representative had said that the provisions were not applied, and only involved persons excluded for reasons of security, individuals had in fact been affected by these provisions.

Moreover, under section 157(6) of the 1987 Labour Code, an employer could terminate a contract of employment, without entitlement to compensation, on the grounds that an offence had been committed under the Act on state security. The Workers' members found the very possibility of resorting to such abuses to be unacceptable. In addition, the Government had said that there was nothing irregular going on in the universities, yet decrees granted broad powers to university rectors to terminate professors' and officials' contracts and to expel students without having to give any reason for the decision. The Workers' members would not be satisfied until such legislative provisions had been amended and the concrete facts had changed. They once again called upon the Government to take the steps necessary to ensure that, in accordance with the Convention, no one could be denied access to the university or other institution, or be expelled therefrom, for having expressed a political opinion. They asked the Government to state when and how the modifications in various laws and in practice would be made.

The Employers' members noted that in the course of the periodic discussions of this case the Conference Committee had always been able to see changes. Last year, in view of the adoption of a new law principally governing the public service, Chile had been cited as a case of progress in relation to this Convention. The remaining concerns the Committee of Experts had expressed in its pending observation began with article 8 of the Constitution, and a state security provision which did not seem to be self-executing but rather was applied by means of court decisions. The Government representative had confirmed that this has been applied in only one case to date. The Employers' members supported the Committee of Experts' request for information about any decisions reached in practice under those provisions and on any measure taken or contemplated to amend or repeal article 8 of the Constitution and Act No. 18662. The Employers' members also drew attention to the provision in the new Labour Code permitting termination of an employment contract under circumstances regarding which the Committee of Experts had expressed concern over the danger that political opinion could be the basis for such a decision. The Government representative had stated that this related only to punishable offences which had a direct bearing on work. The Employers' members seconded the Committee of Experts' doubts as to whether this provision was precise enough, and joined in the request for additional information. They recalled that the Committee had urged the governement to re-examine provisons allowing for the termination of a worker's contract for conduct which had no bearing on the performance of duties arising from the employment relationship. In relation to the two points in the Committee of Experts' observations concerning universities, the Employers' members noted the Government representative's statements that the rectors' powers were confined to academic affairs and that no student had been expelled under the provisions in question. They welcomed the Government's assurance that it was open to re-examining this matter and hoped that the text of any new rules would be forwarded. They also supported the Committee of Experts' request for copies of court decisions; these would help to clarify the scope of application of the various legislative provisions at issue. The Employers' members noted that changes had taken place in the past. They took note of the Government's pledge to re-examine certain matters and of its mention of new rules to be drafted. Recalling the important referendum scheduled for late 1988 which might have an indirect effect on the application of this essential human rights convention, they looked forward to continuing the dialogue and to seeing positive developments in connection with ensuring full application of the Convention.

The Worker member of Colombia stated that taking account of the clear, precise comments of the Committee of Experts, the arguments presented by the Government representative of Chile were unacceptable. He considered that once again a statement of goodwill and promises was being made which, as experience had shown, would to a large extent remain unfulfilled. He considered that article 8 of the Constitution of Chile violated not only Convention No. 111 but also Conventions on freedom of association. He stressed that in the year marking the 40th anniversary of the Universal Declaration on Human Rights, violations of these rights in Chile could not be passed over lightly. He referred to the case of the Socialist Party leader Clodomiro Almeyda, who had been found by the constitutional court to have personally violated article 8 of the Constitution and who had been made subject to the occupational prohibitions provided for in that article. He also thought that the provision of the Labour Code which permitted a worker to be dismissed without compensation on the basis of having committed a crime under the Act on national security, even if there was no direct bearing on work, also violated Conventions Nos 87 and 98 since a call for collective public action could be a crime under that Act. He noted that the provision referred to had not been amended when the new Labour Code was adopted.

The Worker member of Spain, referring to the Labour Code provision which permitted termination of a workers' employment contract on the basis of the commission of a crime under the Act on national security, esteemed the explanations provided by the Government representative to be insufficient. In fact, if exercise of trade union activities and the calling of strikes or work stoppages led to dismissal, this was in contradiction to the Convention ratified by Chile. This was also the case if workers were dismissed because they had been absent from work owing to their arrest or interrogation as a result of their political activities. He sought clarification of the situation of Messrs. Bustos, Labrana and Martinez, members of the national Grouping of Workers (CNT), who had been arrested for organising a strike in 1987, and of the present situation of about a 100 workers, including 17 trade union leaders, who had been dismissed from employment with the public railway company during negotiations seeking to have the company remain a public enterprise. He also referred to the Constitutional Court ruling involving Clodomiro Almeyda under article 8 of the Constitution, which amounted to a violation of Convention No. 111. He asked the Government representative to indicate if the Government would be in a position to amend article 8 and requested explanations in regard to the facts surrounding the killings of various teachers and trade unionists.

The Government representative reiterated his Government's position to the effect that the dialogue should lead to concrete action in terms of progress regarding harmonisation of the national legislation with international labour Conventions. Referring to the risk, mentioned by the Workers' members, that article 8 could be applied to anyone who expressed disagreement with the regime, he stated that this article penalised acts contrary to the legal and constitutional order and not criticism of the regime. He insisted that the Labour Code provision on reasons for terminating employment contracts was applied strictly within the framework of the labour relations system. He stated that in his country the workers enjoyed the right to strike, which, however, could be declared illegal if not exercised within the framework of collective bargaining; in such a case, the workers could always appeal. He indicated that a referendum on the presidency of the Republic was scheduled to take place at the end of 1988. As regards the three trade unionists referred to by the Workers' member of Spain, he stated that the Santiago Court of Appeals had overruled the decision of the court of first instance and that these people were now free. In connection with the strike at the railway company, which had taken place outside the context of collective bargaining, he confirmed that a certain number of workers had in fact been dismissed but that an appeals court was now examining their situation. He reaffirmed the willingness of his Government to hear the opinions of the Committee of Experts and the present Committee so that their views could be transmitted to the competent bodies with the aim of ensuring respect for international labour standards within the framework of national legislation.

The Workers' members had been very concerned about this case for a number of years, and their concern persisted. The Conference Committee had discussed the case in 1976, mentioned it in a special paragraph of its report in 1977 and 1978, discussed it again in 1979 and mentioned it in a special paragraph in 1981 and 1982. A mission had taken place in 1983 and the discussion had continued thereafter. On some occasions, it had been possible to note some progress. The Workers' members maintained their serious concern, however, particularly in view of the comments made by the National Grouping of Workers to which the Committee of Experts' report had referred. Despite all that the Government representative had said to minimise the possible application of article 8 of the Constitution, the danger remained that political criteria would be used to penalise workers in the social sphere. For this reason, the Workers' members wished the Committee's conclusion to be firm and crystal clear. If serious progress could not be noted next year, there would be a need to apply more stringent criteria in this case.

The Worker member of Chile referred to the extensive discussions which had taken place in the present Committee on the application of this Convention in his country. He recalled that many international instruments enshrined the protection of human rights: the Universal Declaration on Human Rights of 1948, the International Covenant on Social, Economic and Cultural Rights, the International Covenant on Civil and Political Rights and, at the regional level, the Declaration of Bogot//c. He thought the 1987 Labour Code contained provisions contrary to the Convention and should be amended. He believed that the constitutional provision that it took a plebiscite to amend the Constitution should be reppealed.

The Worker member of Uruguay agreed with the statements made by the Workers' members of Colombia and Spain as well as by the Workers' members collectively. It would have been desirable to have present in the Committee the representatives of the National Grouping of Workers (CNT) who had made the comments regarding the non-observance of the Convention, but he was familiar with such situations since not so long ago his country had been under a dictatorship and at that time, the representatives who came from his county did not in fact represent anyone. In addition, he indicated that in Chile workers were dismissed for exercising the right to strike, as was very well known. He referred to the Government representative's statement that an appeals court had overturned the decision of the court of first instance in relation to the three trade union members of the National Grouping of Workers (CNT); the Government representative had failed, however, to mention that the Government had insisted upon going ahead with the proceedings. He wondered whether true representatives of Chilean workers would be able to participate in the Conference Committee next year.

The Committee took note of the information supplied by the Government representative. It recalled that this case had been discussed in 1987 and on many previous occasions. It noted with regret that recently adopted legislation had not eliminated existing problems, but had introduced further discrepancies with provisions of the Convention. The Committee again expressed its great concern about the serious problems that remained in legislation and in practice. The Committee again expressed the firm hope that the Government would very soon adopt the measures necessary to ensure full conformity with the Convention in respect of all the point raised, and that next year it would provide full information in this regard.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

A Government representative recalled, in connection with the legislation on employment in the public sector, that in this year the Committee of Experts had noted with satisfaction that an organic constitutional law for the general basis of the state administration (No. 18,575 of 12 November 1986) had been adopted. In that connection, he referred to various provisions of that law relating to the procedure for selecting candidates for the civil service (section 46) and to stability of employment (section 48). He also referred to a statement made by the President of the Republic on 1 May 1987 according to which, as from the entry into force of this law, no civil servant could be arbitrarily dismissed. The Government, in adopting the law in question, which repealed section 5 of Decree Law 2345 and Decree Law 3410, had expressly recognised the value of the comments made by the Committee of Experts.

The Workers' members recalled that the Government representative had indicated, in connection with the request made by the Committee of Experts concerning the amendment of article 8 of the national Constitution, that the amendment of any constitutional provision had to be submitted to a national referendum. They therefore wondered whether the referendum had taken place and whether article 8 of the Constitution had in fact been amended. That question had already been discussed on many occasions, and the Committee had adopted a very firm attitude on the subject. It had to be acknowledged that real progress had been made, but it did not seem that measures had been taken to amend the article in question. The Workers' members were also worried that, even if the organic constitutional law for the general basis of the state administration had been amended, the practical implementation of the amendment might not be fully in conformity with the Convention. They therefore hoped that all the efforts that were being made and the dialogue that was taking place between the Government and the Committee would help to solve the remaining problems.

The Worker member of France, after expressing satisfaction at the regularity with which the Government of Chile had replied to the questions put to it by the Committee, noted that he, like the Workers' members, trusted that progress had been made with regard to legislation. However, he wondered whether that legislation was being effectively applied. For example, in January and February 1987, 7,000 teachers had been removed from their posts. Consequently, there were grounds for thinking that the regular participation of the Government representative in the Committee's work might be a screen designed to conceal the Government's failure to act. The dismissal of the 7,000 teachers had been designed to extend the Government's authority over the educational system. The reasons put forward for dismissing the teachers had nothing to do with their work; they had been charged with having participated in political or trade union activities, individually or collectively-in other words, with having exercised a right presumably recognised in the Chilean Constitution. The most curious feature of the case was that the President of the Republic himself had intervened to request the reinstatement of the teachers. The question arose as to whether a "stop-go" tactic of intimidation was being applied; if so, it was in any event contrary to the Committee's recommendations and observations.

The Worker member of Belgium said that the military Government had been in power in Chile for 13 years. He, along with many other organisations, regretted to have to state that human rights, including the freedom of association, were still being systematically violated in Chile. As far as this Convention was concerned, the specific point at issue was not so much whether the organic law governing the recruitment of civil servants should be amended or not, but whether the Government was willing to amend article 8 of the Constitution, since it was that article which permitted discrimination in employment. In other words, the Committee would like to know whether the Government was ready to organise the referendum required to bring its Constitution into line with international Conventions.

The Worker member of Pakistan, supporting the statement of the Workers' members, said that article 8 of the Chilean Constitution, under which a person, teacher, trade unionist or journalist, could be arbitrarily dismissed, was contrary to the provisions of the Convention and should be brought into line with it.

The Worker member of the USSR agreed that the article of the Chilean Constitution that discriminated against workers on political grounds was a clear violation of Convention No. 111. Promises had been made to eliminate such discrimination, but nothing had been done. Chile was constantly on the list of countries invited to appear before the ILO's supervisory bodies, but only half-measures were taken. Everyone, especially the international trade union movement, was aware of the violations of workers' rights occurring in Chile, which the ILO could not overlook. Consequently, the Conference Committee should recommend to the Committee of Experts that a general study should be made of Chile's situation with regard to the implementation of ILO Conventions, to be submitted to the Conference at its next session, so that the present Committee would be in a position to examine the situation and to adopt appropriate measures.

The Worker member of the Federal Republic of Germany said that article 8 of the Chilean Constitution, under which persons advocating a totalitarian concept of society, the State or the legal order or based on the class struggle could be removed from public service, was an obvious breach of the Convention, which had to be seen in the context of the many violations of human rights that had occurred since the present oppressive regime had come to power, with regard to which the workers could not remain silent.

The Worker member of Chile first expressed his agreement with the statements of the Workers' members and of the Worker member of France and then referred to the referendum which should be organised with a view to the modification of article 8 of the Constitution. He pointed out that the Chilean Constitution itself provided that the referendum had to be convened by a decision of the President of the Republic. He said that this Convention was a fundamental protection for workers. He referred to the dismissal of teachers mentioned previously and stated that Chilean trade union leaders had discussed this with the authorities, to let them know that they considered this action both a violation and an arbitrary measure. He emphasised the fact that the Chilean trade union movement was an active movement in the country, which was struggling to obtain changes and improvements in the labour legislation and to ensure the ratification of Conventions such as Convention No. 87 concerning freedom of association and Convention No. 144 concerning tripartite consultation. He pointed out that in his country there were trade union organisations, federations and confederations which had the right under the Constitution to possess legal status. He expressed his concern with regard to the dismissal of the teachers even though their dismissals had been suspended. He expressed the hope that these people would be given the possibility to exercise the right to work, a privilege of human beings, which had to be defended by the trade union movement.

The Worker member of Ecuador stated that since article 8 of the Chilean Constitution permitted discrimination, this provision violated Convention No. 111. The Government was therefore under an obligation to amend the Constitution on this point (since initiating this process was within its competence) and to decide in what manner such a modification could be effected. He stated that the Committee should note in its conclusions the violation of the Convention by the Government, since the Constitution established a discrimination which was contrary to the Convention.

The Employers' members stated that the Committee had been concerned by the application of this Convention by Chile for a number of years. They considered that the repeal of the decrees which permitted discriminatory dismissals in the public service constituted a good example of progress which should be highlighted. There remained nevertheless the problem posed by article 8 of the Constitution. They understood that the process necessary to amend this article of the Constitution was a long one but added that this was a problem for the Government to resolve. They expressed their agreement with the Workers' members that the situation was not yet satisfactory. They thought that in order for the dialogue to be able to continue the Government would have to submit information about the practical application of article 8 of the Constitution. They requested the Government to submit reports and expressed the hope that an improvement with regard to the legislative aspect of this question would be able to be noted in 1988.

The Government representative recalled that the relevant article of the Constitution had never been applied in a way that violated the Convention and that unconstitutional practices could be brought before the Constitutional Court. Referring to the dismissal of teachers, he stated that this had been due to a policy of rationalising the educational system which had a surplus of teachers which, in addition, prejudiced the quality of education. He affirmed that the spirit of co-operation which inspired his Government was simply the expression of its commitment to respect international obligations. In response to the statement by the Worker member from the USSR, he stated that there was trade union representation in his country, which one could see from the Credentials Committee; he added that the Government had invited several trade unionists to participate in the Conference who were not in agreement with the Government.

The Worker member of France referred again to the dismissal of 7,000 teachers and specified that the dismissals were not due to decisions linked to a surplus of staff, but to the individual and collective activities of the trade unions and political activities of the people concerned. It was therefore a question of the application of article 8 of the Constitution and of Act No. 12,927. It was for this reason that he mentioned this case in the context of Convention No. 111 and not Convention No. 122, as it related to discrimination based on the opinions expressed by the people concerned.

The Workers' members stated that the Committee had being expressing its concern with regard to the situation in Chile for a number of years. The application of Convention No. 111, in spite of all this discussion, was still not satisfactory and they requested the Government to provide information on the measures taken or envisaged with a view to amending article 8 of the Constitution. Conventions Nos. 87 and 98 have not yet been ratified in spite of the appeals which had been made and Convention No. 111 could be used to cover the gaps created by the non-ratification of Conventions No. 87 and 98. They expressed the hope that the conclusions would reflect the great concern of the Workers and hoped that the promises which had been made would be fulfilled with a view to amending the legislation and ensuring that the practical application would be in conformity with the Convention.

The Committee took note of the information submitted by the Government representative. The Committee expressed its satisfaction at the progress which had been noted by the Committee of Experts with respect to the termination of employment in the public sector. The Committee expressed its serious concern about the serious problems which existed with regard to article 8 of the Constitution of Chile, an issue which had been discussed in 1986 and on previous occasions and which still needed to be resolved. The Committee hoped that the Government would adopt the measures necessary to ensure conformity with the Convention and that it would provide information on the progress which had been achieved.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Article 1 of the Convention. Grounds of discrimination. Legislation. The Committee recalls that in its previous comments it recalled that: (1) Act No. 20,609 does not explicitly include colour, national extraction and social origin among the prohibited grounds of discrimination; and (2) section 2 of the Labour Code prohibits discrimination on the basis of all the grounds set out in Article 1(1)(a) of the Convention, including colour, national extraction and race. The Committee notes the information provided by the Government in its report on the draft legislation to amend Act No. 20,609 (Bulletin No. 13867-17), which: (1) recognizes various prohibited grounds of discrimination, including social origin, cultural identity, sexual and emotional orientation, sexual characteristics, educational level, the situation of migrant, refugee, repatriated, stateless or internally displaced persons, genetic characteristics, mental or physical health, seropositivity status, the occupation or trade that is or has been exercised, and the fact of being or having been imprisoned; and (2) explicitly recognizes direct, indirect, multiple or aggravated, and structural discrimination. While noting with interest the inclusion of “social origin” and other prohibited grounds of discrimination in the draft legislative text, the Committee observes that it does not specify “colour” or “national extraction”. The Committee also notes that, according to the statistics provided by the Government, between 2018 and 2022, the Labour Department investigated 39 cases of discrimination on grounds of “race or colour”, as well as 14 cases of discrimination on grounds of “national extraction or social origin”. The Committee requests the Government to provide information on: (i) the progress achieved in the reform of Act No. 20,609 (Bulletin No. 13867-17); and (ii) whether consideration has been given, or it is planned to consider the inclusion of “colour” and “national extraction” in the Act when it is revised.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee notes with interest the Government’s indication in its report concerning the adoption of Act No. 21,369 of 30 August 2021 regulating sexual harassment, violence and gender discrimination in higher education, section 2 of which includes sexual harassment which creates an intimidatory, hostile or humiliating environment, or which may threaten, prejudice or affect the opportunities, material conditions or occupational or academic performance of a person. With reference to other legislative developments, the Committee also notes that: (1) the 2013 Bill which proposed to include sexual harassment in the Penal Code has been shelved (Bulletin No. 8802-18), and two other draft legislative texts are currently under examination (Bulletins Nos 11907-17 and 14533-07); (2) the Bill on the right of women to a life free from violence (Bulletin No. 11077-07) is at the stage of the second constitutional procedure; and (3) an amendment to the Labour Code is currently under examination to require employers to develop protocols for the prevention and protection of workers against sexual harassment (Bulletin No. 12257-13). The Committee recalls that section 2 of the Labour Code, as amended in 2005, does not provide adequate protection against sexual harassment in employment and occupation, as it does not clearly cover sexual harassment which involves the creation of a hostile working environment through types of behaviour other that “requirements of a sexual nature”, such as images, comments, jokes or gestures. Moreover, as it is in the context of “labour relations”, it is not clear whether this provision covers: (1) sexual harassment by third persons (such as clients or suppliers); and (2) all aspects of “employment and occupation”, as defined in Article 1(3) of the Convention, including access to training and employment. The Committee further observes that, according to the data of the Labour Department, a total of 593 complaints of sexual harassment were made in 2021 and 804 complaints in 2022. While welcoming the legislative efforts made by the Government in relation to sexual harassment, the Committee requests it to provide information on any measures adopted to ensure that section 2 of the Labour Code defines and prohibits sexual harassment: (i) in all its forms, including sexual harassment involving the creation of a hostile working environment; (ii) that is committed by third parties, such as clients or suppliers; and (iii) in all aspects of employment and occupation. It also requests the Government to provide information on cases of sexual harassment that have been dealt with by the competent authorities, and on any compensation granted and penalties imposed.

Articles 1(1)(b) and 2. Discrimination on the ground of disability. The Committee notes the information provided by the Government on the current process of the examination of a Bill to amend various legislative provisions respecting the validation and equivalence of studies undertaken in special educational establishments (amended Bulletins Nos 13011-11, 14445-13 and 14449-13). The Committee also recalls that in its latest comment on the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), it examined the evaluation of Act No 20,015 and noted: (1) the low level of compliance with Act No. 20,015 in practice; (2) two Bills under examination to improve the application of the Act and increase the quota for the recruitment of persons with disabilities to 4 per cent; (3) Act No. 21,275 of 2020, which requires enterprises with over 100 workers to adopt measures to facilitate the labour inclusion of persons with disabilities; and (4) various training and promotional activities undertaken by the National Disability Service (SENADIS). The Committee notes this information, which responds to the issues raised in its previous direct request.

Sexual orientation and gender identity. The Committee observes that, according to the statistics provided by the Government, between 2018 and 2022, the Labour Department dealt with 76 complaints and investigated 73 cases of discrimination on grounds of sexual orientation, as well as 40 complaints and 40 cases of discrimination on grounds of gender identity. The Committee requests the Government to provide information on the results of the investigations carried out, the penalties imposed and the remedies granted in cases in which the existence of discrimination on grounds of sexual orientation and gender identity has been confirmed.

Article 2. National equality policy. The Committee observes that the United Nations Committee on the Elimination of Racial Discrimination recommended expediting the adoption of the Bills to establish the National Council of Indigenous Peoples and the Councils of Indigenous Peoples (Bulletin No. 10526-06) and the Ministry of Indigenous Peoples (Bulletin No. 10687-06), which had both been sent to Congress in 2016 (CERD/C/CHL/CO/22-23, of 13 September 2022, paragraphs 14 and 15). 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 the public and private sectors. In response to its previous comment, in which it requested information on the Bill on child day care centres and on the effect given in practice to Acts Nos 20595 (employment subsidies for women), 20455 (postnatal parental leave in co-participation with the father) and 20399 (coverage of childcare centres), the Committee observes that: (1) the Bill on access to childcare centres (Bulletin No. 14782-13) is still under examination; (2) according to the annual statistics of the social security system, 209,733 employment subsidies for women were granted in 2021 and postnatal parental leave was taken in 77,957 cases; and (3) according to the information published by the Subsecretariat for Social Insurance, during the first seven years of the application of Act No. 20545, only 0.2 per cent of postnatal leave was taken by men. The Committee also notes that, in addition to the National Plan for Equality between Women and Men 2018-30, the National Labour Equity Plan 2021-30 was published in 2022, which seeks an increase in the labour participation of women and an improvement in their conditions in the world of work, and is structured around four pillars (societal, employability, integration and entrepreneurship, and the labour market). With regard to the situation of women in the public sector, the Committee notes that, according to the information published by the civil service, women account for 60 per cent of State administrative personnel and 30 per cent of higher managerial positions, and that these figures are not very different from those examined in 2017. The Committee also notes the existence of the programme “+Women, Leadership in the Public Sector”, a mentorship programme to promote the participation of women in positions of responsibility and leadership in the public sector.

The Committee further notes that, in its report submitted to the Committee on the Elimination of Discrimination against Women, the Government provided information on the adoption of a series of measures to: (1) promote the access of women to male-dominated sectors, high management positions and the digital economy (including specific programmes, public-private round tables with key sectors and registers of women seeking high management positions); and (2) establish a national care and support system, a childcare subsystem and Act No. 21155 on the protection of maternal nursing (CEDAW/C/CHL/8, of 16 May 2022, paragraphs 116 and 117). The Committee welcomes the many efforts made by the Government to promote the reduction in occupational gender segregation and the reconciliation of work and family life, and requests it to provide detailed information as a basis for assessing their impact, including: (i) statistical data on the labour participation of men and women, disaggregated by sex, sector, occupation and hierarchical level; and (ii) the number of men and women workers taking postnatal parental leave and other measures provided by care systems.

Application in practice of the procedure for the protection of fundamental rights. The Committee notes the information provided by the Government on a court ruling in the context of a case under the procedure for the protection of fundamental rights in which a case was identified of discrimination on grounds of maternity. The Committee also notes the Annual Judicial Statistics Report 2020 of the National Statistical Institute, according to which 13.9 per cent of completed labour cases were submitted under the procedure for the protection of fundamental rights. The Committee once again requests the Government to provide information on the procedure for the protection of fundamental workers’ rights in cases of alleged labour discrimination, together with an evaluation 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 the penalties imposed.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee received observations from the Single Central Organization of Workers of Chile (CUT-Chile) on 13 September 2018 containing allegations of acts of discrimination on the basis of political opinion in a context of a change of government. In this regard, the Committee notes that the CUT has also made a representation under article 24 of the ILO Constitution containing the same allegations. The Committee notes that an ad hoc tripartite committee of the ILO Governing Body examined the representation and made conclusions and recommendations. The Governing Body concluded the procedure at its session in March 2023 (GB.347/INS/18/5).

Article 1(1)(a) of the Convention. Discrimination based on sex. Legislation. The Committee notes that, according to the database of the Chamber of Deputies of Chile, the Bill to amend section 349 of the Code of Commerce which, when adopted, will allow married women who are not covered by the separate property regime to conclude a commercial partnership agreement without the need for special authorization from their husband, is still going through the second constitutional procedure (Bulletin No. 7567-07). The Committee requests the Government to take the necessary measures to amend section 349 of the Code of Commerce.

Article 2. Pensions. With reference to its previous comments, the Committee notes that, according to the 2021 report “Gender gaps in the Chilean social insurance system, direct and indirect factors” (“Brechas de género en el sistema previsional chileno: factores directos e indirectos”), prepared by the Department of Social Insurance Studies of the Subsecretariat for Social Insurance, the establishment of different retirement ages by sex (65 years for men and 60 years for women) and the use of mortality tables differentiated by sex are two parameters which particularly affect gender gaps in pensions. The report indicates that women have to finance a longer period of retirement than men as their statutory retirement age is lower and their life expectancy upon retirement is higher, which requires them to distribute their lower savings over a longer period of retirement than men, implying that their pensions are lower. The Committee observes that, according to the information published by the Government and the Pensions Supervisory Authority, a project is being carried out to reform the pensions system in the country. In this regard, the Committee refers to its 2023 General Survey “Achieving Gender Equality at Work“, paragraph 400. The Committee encourages the Government to take the opportunity of the current reform of the pensions system to adopt measures with a view to ensuring respect for the principle of equality between men and women in relation to pensions, such as the adoption of mixed mortality tables and the equalization of the retirement ages of men and women.

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

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

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.

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

The Committee notes the observations of the Single Central Organization of Workers of Chile (CUT-Chile), received on 13 September 2018. The Committee requests the Government to send its comments in this regard.

Article 1 of the Convention. Grounds of discrimination. Legislation. The Committee recalls that, in its previous observation, it referred to Act No. 20609 of July 2012, establishing measures to combat discrimination, which does not include the grounds of colour, national extraction and social origin among the prohibited grounds of discrimination. However, these criteria are contained in section 2 of the Labour Code. In the same observation, the Committee noted the information on relevant case law provided by the Government, including the case law harmonization ruling of the Supreme Court of 5 August 2015, in which the Supreme Court extends the criteria of discrimination envisaged in the fourth subparagraph of section 2 of the Labour Code to all types of arbitrary discrimination and differences prohibited by article 19(16) of the Political Constitution (any discrimination that is not based on the capacity or suitability of the individual) and by the Convention, and states that the criteria of discrimination cannot claim to be exhaustive, as they are narrower than the protection afforded by the constitutional provision. While noting this information, the Committee asked the Government to provide information on the effect given in practice to Act No. 20609 and the case law harmonization ruling of the Supreme Court of 5 August 2015. The Committee notes that, in its report, the Government provides extensive information on court decisions on cases of discrimination that refer to section 2 of the Labour Code, including the ruling of the Supreme Court of 10 July 2015, issued in Case No. 24.386-2014, in which the Court reiterates that the list of grounds of discrimination prohibited in section 2 of the Labour Code “should not be regarded as exhaustive but, rather, as a list that specifies suspicious criteria the presence of which in the present case implies a violation of the mandate of non-discrimination at work contained in article 19(16) of the Fundamental Charter”. The Committee also takes note of Act No. 20940 modernizing the labour relations system, published on 8 September 2016, which extends the list of grounds of discrimination contained in section 2 of the Labour Code. It notes with interest that this Act adds the following grounds in relation to Article 1(1)(b) of the Convention: socioeconomic situation, language, beliefs, participation in trade union organizations, family background, personal appearance, disease or disability. While noting this information, and recalling the importance of guaranteeing that all persons have a clear legal basis for asserting their right to equality of opportunity and treatment in employment or occupation, the Committee once again requests the Government to: (i) clarify how the provisions of the Labour Code and Act No. 20609 are coordinated in practice in terms of the grounds established and the remedies available to victims of discrimination in employment and occupation; and (ii) send information on the application in practice of Act No. 20609.

Discrimination based on sex. Legislation. The Committee recalls that it has been referring for many years to the need to amend section 349 of the Code of Commerce with a view to granting equal rights to spouses to conclude a commercial partnership agreement, so that women who when entering into marriage did not choose the separate property regime can conclude a commercial partnership agreement without the need for special authorization from their husband. In its previous observation, the Committee noted that section 5(5) of the Bill to amend the Civil Code and other legislation provides for the amendment of section 349 of the Code of Commerce and removes the requirement for the authorization of the husband for a wife to be able to enter into a commercial partnership agreement, and asked the Government to send information on any developments relating to the adoption of the Bill. The Committee notes the Government’s indication that the amendment of the marriage regime has been included in the Gender Equity Agenda presented by the President on 23 May 2018 and that the above-mentioned Bill to amend the Civil Code and other legislation is being processed. The Committee observes that, according to the website of the House of Representatives of Chile, the Bill is going through its second constitutional procedure in the Senate. The Committee requests the Government to provide information on the passage of the Bill and to supply it with a copy of the Act once it is promulgated.

Sexual orientation. The Committee also notes with interest that Act No. 20940 of 2016 adds “sexual orientation” and “gender identity” as prohibited grounds of discrimination. The Committee requests the Government to provide information on the application of these provisions in practice.

Article 2. Conditions of work and remuneration. In its previous observation, the Committee referred to the observations made by the Federation of Unions of Supervisors Rol A and Professionals of CODELCO Chile (FESUC), which refer to: (i) workers recruited by the enterprise after 2010, the majority of whom are women, receive lower pay and do not benefit from the same working conditions as those recruited previously; and (ii) the code of conduct of the enterprise, which discourages political activities by employees, even outside working time. The Committee noted the Government’s reply and asked the Government to continue to provide information in this regard. The Committee notes the Government’s indication that, according to the enterprise, its pay and benefits policy is based on objective criteria, according to the operational reality of each of its divisions, their size, productivity, and the conditions of the copper market. The enterprise indicates that one of the pillars of its Corporate Policy on People Management is “systems of compensation, benefits and recognition based on merit, and job evaluation systems that safeguard equality of opportunity, internal equity and external competitiveness” (pillar 6), and that remuneration is “agreed” by the primary unions that form FESUC and the various divisions of the enterprise. With respect to the situation of women workers in particular, the enterprise indicates that it has established a policy to close persistent gender gaps in the workplace and is making efforts to increase women’s participation in the world of work and to promote the value of women’s contribution to the productivity of enterprises. As a result of these efforts, the enterprise has four workplaces that have earned the Equal-Conciliation Seal (Sello Iguala-Conciliación) awarded by Chile’s National Service for Women and Gender Equity. The enterprise adds that there are two industrial instruments in its divisions that are designed to ensure compliance with the policies for equality of treatment between men and women within the corporation: (i) Internal Regulations on Order, Health and Safety, which establish the right to equal pay and prescribe safeguard procedures for workers in the event of a violation; and (ii) an internal system through which workers or third parties may file complaints – which can be signed or anonymous – in the event of a violation of the legal regulations, policies, procedures, code of conduct or any other regulations applicable to the enterprise, its workers, its relations with contractors and with third parties. The enterprise reports that, at the date of issuance of the report, no discrimination-related infringements had been observed within its divisions. With regard to the enterprise’s code of conduct, the enterprise points out that no complaints have been received regarding political activities. The Committee notes that, according to the Government, all of the above demonstrates that the enterprise respects the specific and non-specific labour rights of its workers, by applying the principle of equality of treatment and respecting the political rights of those who provide services to the corporation.

Pensions. In its previous comments, the Committee referred to the observations made by various social partners, according to which the current private pensions system, which is based on a fully funded system, discriminates against women through the use of differentiated mortality scales for men and women. It also noted the adoption on 29 April 2014 of Supreme Decree No. 718 creating the Presidential Advisory Commission on the Pensions System. The Committee observed that the proposals contained in the final report of the Presidential Advisory Commission of September 2015 included the elimination of the calculation of differentiated mortality scales by sex and their replacement by unisex scales based on a uniform calculation of life expectancy. The Committee asked the Government to provide information on: (i) the real impact of the use of differentiated mortality scales from their introduction up to the present time on the specific amounts of the benefits received by pensioners; and (ii) the action taken as a result of the final report of the Presidential Advisory Commission on the Pensions System in relation to the elimination of the calculation of differentiated mortality scales by sex. The Committee notes the Government’s indication that the real impact of the use of differentiated mortality scales by sex cannot be assessed, as their use remains a proposed measure. Moreover, the Government reports that, on 1 July 2016, the authority responsible for monitoring pensions (Superintendencia de Pensiones (SP)) and the authority responsible for monitoring securities and insurance (Superintendencia de Valores y Seguros (SVS)) published new mortality scales, with the technical assistance of the Organisation for Economic Co-operation and Development (OECD) and following consultations with the National Institute of Statistics (INE) and the Latin American and Caribbean Demographic Centre (CELADE). The Committee observes that General Regulations SP No. 162 and SVS No. 398 of 20 November 2015, issued by the authorities responsible for monitoring pensions and securities and insurance, which establish the mortality scales published in July 2016, provide for the use of five differentiated mortality scales by sex. The Committee notes, on the other hand, that a proposal to amend the national legislation on pensions has been presented to Congress. The Committee wishes to highlight that factors, such as a labour force participation rate for women that is considerably lower than the rate for men, the use of differentiated mortality scales by sex (instead of unisex mortality scales) and the absence of provisions which allow periods during which parental responsibilities are exercised to be included in the calculation of pensions, have a negative impact on women’s pension levels, which is further aggravated in funded pension systems in which the amount of benefits depends on the contributions made by workers during their working lives. The Committee urges the Government to take the opportunity presented by the legislative reform under way to ensure that unisex mortality scales are included and otherwise guarantee the principle of equality between men and women in terms of pensions, and requests the Government to provide information on any developments in this regard.

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

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 1(1)(a) of the Convention. Sexual harassment. The Committee has been referring for several years to Act No. 20 005, amending the Labour Code to include provisions on sexual harassment, which appears to afford more limited protection in terms of the persons protected, offenders, the scope of application and victim protection procedures. The Committee notes the Government’s indication that 429 complaints of sexual and labour harassment were made to the central State administration in 2011 and 2012, of which 79 per cent were for labour harassment, 13 per cent for sexual harassment and 8 per cent for both reasons. Women made 73 per cent of the complaints. Of these complaints, 278 were investigated through disciplinary procedures, resulting in the recognition of 45 cases of labour harassment, 12 cases of sexual harassment and three cases of both labour and sexual harassment. The Government adds that the National Women’s Service (SERNAM) has undertaken training and awareness-raising activities on sexual harassment in the public and private sectors. In this connection, the Committee notes 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 requests the Government to provide information on the stage of the Parliamentary procedure for the examination of the Bill to reform the Penal Code in relation to sexual harassment and on the application in practice of Act No. 20 005 on sexual harassment, and on any amendment envisaged in this regard. The Committee also requests the Government to continue providing information on the complaints of sexual harassment made to the National Directorate of Labour and the courts, the actions taken on these complaints, penalties imposed and compensation awarded.

Articles 1(1)(b) and 2. Discrimination on the ground of disability. With reference to its previous comments concerning the impact of the measures adopted in promoting the access to employment of persons with disabilities, the Committee notes the Government’s information on the adoption of the following measures with a view to the integration into the labour market of persons with disabilities: (a) within the context of the National Training and Employment Service (SENCE), the “More Skills Programme” and the handbook on labour intermediation processes have been implemented; (b) the Programme of Social Services of the Subsecretariat of Labour; and (c) the signature of the collaboration agreement between the SENCE and the National Disability Service (SENADIS), providing subsidies to enterprises which recruit persons with disabilities. The Committee also notes that, according to the national study on disability prepared in 2015 by the Ministry of Social Development, the labour market participation rate of persons with disabilities over 18 years of age is 63.8 per cent. The Committee also notes that, although the proportion of women with disabilities (24.9 per cent) is higher than that of men (14.8 per cent), the labour market participation of women with disabilities (26 per cent) is lower than that of men with disabilities (61.3 per cent). The Committee further notes the Bill to amend the Labour Code with a view to prohibiting discrimination at work on the ground of disability and establishing a compulsory minimum quota of workers with disabilities of 2 per cent in enterprises with over 50 workers. The Committee requests the Government to provide information on the effectiveness and results of the programmes and measures adopted, including information on the measures intended to increase the participation of women with disabilities in the labour market, and statistical data disaggregated by sex on the number of persons benefiting from each of the programmes referred to above. The Committee also requests the Government to provide information 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.

Article 2. National equality policy. In its previous comments, the Committee requested the Government to provide information on the measures and plans adopted or envisaged to combat racial discrimination, particularly against indigenous peoples, and discrimination on the other grounds set out in the Convention. Noting that the Government’s report does not contain information on this subject, the Committee recalls that the Convention requires the national equality policy to be effective and to be clearly stated, and emphasizes that measures to address discrimination in law and practice should be concrete and specific in respect of all the grounds covered by the Convention (2012 General Survey on the fundamental Conventions, paragraph 844). 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 (Article 3(f) of the Convention).

Promotion of equality between men and women in employment and occupation. With regard to the impact of the measures and plans adopted to promote gender equality in employment and occupation, the Committee notes the measures adopted within the framework of the programme Iguala-Conciliación for the labour market integration of women and awareness raising on gender gaps and the concept of co-responsibility, the use of time by men and women, and the gender perspective in trade union activities. The Committee also notes that, within the framework of Act No. 20 595, a total of 657,244 women have participated in the incentive programme for the employment of women, and that SENCE has formulated programmes with the objective of providing technical training for women with a view to improving their employability. The Committee further notes the adoption of Act No. 20 820 of 20 March 2015 establishing the Ministry of Women and Gender Equity. Finally, the Committee notes the adoption of support measures for the labour market participation of women, including Act No. 20 455, which includes postnatal parental leave of six months in co-participation with the father, and Act No. 20 399 on the provision of child day-care centres in enterprises with over 20 workers. The Committee requests the Government to continue providing information, particularly on the measures adopted or envisaged within the framework of the Plan for Equality of Opportunities for Men and Women 2011–20 to increase the participation rate of women in the labour market and to reduce occupational segregation. The Committee further requests the Government to continue providing information on the implementation of the programme Iguala - Conciliación and on the specific activities undertaken by the SERNAM, and on the implementation in practice of Acts Nos 20 595, 20 455 and 20 399. The Committee also asks the Government to provide statistical data on the impact of these measures on the employment of women.

Public sector. The Committee notes the measures adopted by the Government with a view to achieving equality between men and women in the central public administration, including those relating to the application of the Code of good labour practices and non-discrimination for the central State administration. In particular, the Committee notes the information that the application of the directive on the balanced representation of men and women in managerial and executive positions achieved less progress than in other areas during the period 2006–09. The Committee notes that the situation has not developed significantly since then, as in 2014, although there were 131,630 women and 96,239 men, that ratio was not reflected in executive positions. For example, there were 66 women and 182 men in the positions higher service chiefs, 2,896 women and 4,003 men in professional executive positions, and 364 women and 823 men in non-professional executive positions. The Committee encourages the Government to take measures to examine the reasons that prevent women from gaining access to managerial positions and 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. The Committee requests the Government to provide information on any developments in this regard and to continue supplying statistical data on the occupational levels of men and women in the public sector.

Pensionable age of women. The Committee notes that the Government has not provided information on the manner in which effect is given 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. 20255 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. In this regard, the Committee notes that, according to the data of the National Socio Economic Assessment Survey (CASEN) of the Ministry of Social Development, in 2013 the participation rate of women in the labour market was 49 per cent among the age category of 55–59 years, 34.6 per cent among the category of 60–64 years and 9.5 per cent among the over 65 years category, while the rate for men was 88.1 per cent among the age category of 55–59 years, 78.1 per cent among the category of 60–65 years and 29.4 per cent among the over 65 years category. Finally, the Committee notes 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 once again requests the Government to provide information on the manner in which these provisions are applied in practice. It also requests the Government to provide information on the situation in relation to the proposal by the Presidential Advisory Commission on the Pensions System to equalize the retirement age for men and women.

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. 20087 and the complaints of discrimination examined between 2014 and 2015 by the labour inspectorate, which reports 3,284 complaints in 2014 and 2,912 between January and October 2015. An average of 75 per cent of the investigations of these complaints have been completed, with violations being found in 48 per cent of the cases. 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.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the Government’s communication, received on 11 September 2013, in reply to the observations of the Federation of Unions of Supervisors Rol A and Professionals of CODELCO Chile (FESUC), received on 14 June 2012.

Article 1 of the Convention. Grounds of discrimination. Legislation. In its previous comments, the Committee noted that Act No. 20609 of July 2012, establishing measures to combat discrimination, does not include the criteria of colour, national extraction and origin among the prohibited grounds of discrimination. However, these criteria are contained in section 2 of the Labour Code. In this regard, the Committee requested the Government to indicate the manner in which these sections are articulated in practice and to provide information on the effect given in practice to Act No. 20609. The Committee notes the Government’s reference in its report to Opinion No. 3704/134 of 11 August 2004 issued by the General Directorate of Labour, analysing article 19(16), third subparagraph, of the Political Constitution, which prohibits any discrimination that is not based on the capacity or suitability of the individual, and concludes that this constitutional provision permits a wider meaning to be given to the legal wording contained in section 2 of the Labour Code and accordingly to apply to other differences of treatment in the field of labour not specified in that provision. The Government also provides the case law harmonization ruling of the Supreme Court of 5 August 2015, in which the Supreme Court extends the criteria of discrimination envisaged in the fourth subparagraph of section 2 of the Labour Code to all types of arbitrary discrimination and differences prohibited by article 19(16) of the Political Constitution and by the Convention. It adds that the criteria of discrimination cannot claim to be exhaustive, as they are narrower than the protection afforded by the constitutional provision. While noting this information, the Committee requests the Government to provide information on the effect given in practice to Act No. 20609 and the case law harmonization ruling of the Supreme Court of 5 August 2015, under the terms of which any discrimination is prohibited which is not based on the capacity or suitability of the individual.

Discrimination based on sex. Legislation. The Committee has been referring for many years to the need to amend section 349 of the Code of Commerce with a view to granting equal rights to spouses to conclude a commercial partnership agreement and so that women who when entering into marriage did not choose the separate property regime can conclude a commercial partnership agreement without the need for special authorization from their husband. In this regard, the Committee notes that section 5(5) of the Bill to amend the Civil Code and other legislation provides for the amendment of section 349 of the Code of Commerce and removes the requirement for the authorization of the husband so that the wife can enter into a commercial partnership agreement. The Committee observes that the Bill has been going through its second constitutional procedure in the Senate since 3 September 2013. The Committee trusts that the Bill to amend the Civil Code and other legislation will be adopted soon, as it provides for the amendment of section 349 of the Code of Commerce with a view to eliminating the requirement for the authorization of the husband for a woman to be able to enter into commercial partnership agreements. The Committee requests the Government to provide information on any developments in this regard.

Article 2. Conditions of work and remuneration. With regard to the observations made by the FESUC, the Committee recalls that they refer to: (i) workers recruited by the enterprise since 2010, who in their majority are women and who receive lower pay and do not benefit from the same working conditions as those recruited previously; and (ii) the code of conduct of the enterprise, which discourages political activities by employed persons, even outside working time. In this regard, the Committee notes that, according to the Government, the enterprise indicates that only one complaint for alleged discrimination on the grounds of age has been made in the context of the employment contract. According to the complaint, the collective agreement, freely concluded by the complainant union, contained differentiated benefits based on when the worker entered the enterprise. The Government indicates that according to the enterprise the complaint was set aside by the courts on the grounds that there were no discriminatory acts. The enterprise adds that all the remuneration and conditions of work set out in the collective agreements are the outcome of free and voluntary collective bargaining and that they do not contain discriminatory clauses. The Committee also notes the denial by the enterprise that the code of commercial conduct and ethics that it promotes is in violation of fundamental rights, as political rights are fully recognized and there are also legal remedies for their protection, which afford a guarantee to workers against variables other than their capacities and suitability influencing their conditions of work. The Committee requests the Government to continue to provide information in this regard.

Pensions. In previous comments, the Committee noted 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 of Chile, according to which the current private pensions system, which is based on a fully-funded system, is discriminatory in relation to women due to the use of differentiated mortality scales for men and women. This implies that a man and a woman worker with equal accumulated funding who take retirement at the same age would receive annuities of differing amounts based solely on their gender. In this connection the Committee requested the Government to provide information on the real impact of the use of differentiated mortality scales from their introduction up to the current time on the basis of the actual amounts of benefits received by pensioners. The Committee notes the adoption on 29 April 2014 of Supreme Decree No. 718 creating the Presidential Advisory Commission on the Pensions System. The Committee observes that the proposals contained in the final report of the Presidential Advisory Commission on the Pensions System of September 2015 include the elimination of the calculation of differentiated mortality scales by sex and their replacement by unisex scales based on a uniform calculation of life expectancy. The Committee once again requests the Government to provide information on the real impact of the use of differentiated mortality scales from their introduction up to the present time based on the specific amounts of the benefits received by pensioners. The Committee also requests the Government to provide information on the action taken as a result of the final report of the Presidential Advisory Commission on the Pensions System in relation to the elimination of the calculation of differentiated mortality scales by gender.

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

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

Article 1(1)(b) of the Convention. Discrimination on the basis of disability. The Committee notes the Government’s indication that, under the terms of Act No. 20422 establishing provisions on equality of opportunity and the social inclusion of persons with disabilities, the measures and programmes adopted include the programme of bonuses for the recruitment of workers of the Subsecretariat of Labour, which subsidizes enterprises that recruit persons with disabilities. The Committee notes the Government’s indication that the programme was not well received by enterprises in 2010, for which reason the amount of the bonuses was doubled in 2011. The Government also refers to the programme implemented by the Department of Social Programmes of the National Training and Employment Service (SENCE), through which 354 persons were trained in 2010, and the programme of SENCE grants offering tax relief to enterprises that train vulnerable groups, including workers with disabilities, which benefited 584 trainees. The Employment Placement Programme undertaken by the National Disability Service (SENADIS) resulted in the placement of 168 persons with disabilities in 2010. The SENADIS has established a national competition for employment integration projects which finances projects for access to dependent employment, self-employment (for women with disabilities and women heads of household including a person with disabilities) and micro-enterprises. The SENADIS also participates in inter-sectoral labour forums with a view to including the variable of disability into labour supply and training in the country. The Government indicates that, with ILO assistance, a study is being undertaken on integrating persons with disabilities in the labour market. The Committee requests the Government to continue providing specific information on the implementation and impact of the programmes and measures adopted, including statistical data disaggregated by sex on the number of persons benefiting from each of the programmes. The Committee also asks the Government to provide information on the findings of the study on the labour integration of persons with disabilities.

Real or perceived HIV status. While noting Act No. 19779 of 14 December 2001, the Committee draws the Government’s attention to the HIV and AIDS Recommendation, 2010 (No. 200), and particularly to Paragraphs 9 to 14 and 37. The Committee requests the Government to provide information on the policies and programmes adopted in relation to HIV and AIDS in the world of work in the context of Act No. 19779 and any other legislation, collective agreements or court decisions that provide specific protection to prevent stigmatization and discrimination in relation to real or perceived HIV status in employment and occupation.

Article 2. National equality policy. The Committee recalls that in its previous comments it noted the Government’s undertaking to establish and implement policies and action plans to combat racism, racial discrimination and discrimination on the basis of sex. The Committee observes that the Government’s report does not contain information on this subject. The Committee recalls that the Convention requires the national equality policy to be clearly stated, which implies that programmes are formulated, all discriminatory laws and administrative practices are repealed or modified, stereotyped behaviours and prejudicial attitudes are addressed and a climate of tolerance is promoted, and a system of monitoring put in place (see General Survey on fundamental Conventions, 2012, paragraph 844). The Committee requests the Government to provide information on the specific measures and plans adopted or envisaged to combat racial discrimination, particularly against indigenous peoples, and to combat discrimination on the basis of gender, to which the Government referred in its previous comments. The Committee requests the Government to indicate whether measures have been adopted and a national policy drawn up in relation to the other grounds of discrimination envisaged in the Convention.

Promoting equality between men and women in employment and occupation. The Committee notes that, according to the latest report of the National Statistical Institute (INE) published by the Economic Commission for Latin America and the Caribbean (ECLAC) for the January–March quarter of 2012, the labour participation rate of men is 71.7 per cent, while the rate for women is 45.2 per cent, amounting to an increase of almost 2 per cent since 2009. The Committee also notes the Plan for Equality of Opportunity for Men and Women 2011–2020 implemented by the National Service for Women (SERNAM), which shows the persistence of a significant gap in economic participation and equality of opportunity between men and women. According to the Plan, the participation of women in economic activity is even lower among women with lower levels of economic resources (between 23 and 27 per cent), which is also the sector with the highest percentage of women heads of household. The Plan also indicates that women are more affected by poverty. The Committee further notes that the Plan for Equality of Opportunity contains six strategic components, among which emphasis may be placed on the formulation of public policies and the strengthening of institutions for equality of opportunity; the strengthening of leadership, family co-responsibility and equality of access to opportunities. The SERNAM has also implemented various measures and programmes, among which emphasis may be placed on the Programme of Good Labour Practices and Gender Equity and the “Good Labour Practices Iguala” Label introduced by the SERNAM. The Committee notes that the Government’s report refers to the implementation of the Iguala.cl programme in the mining sector and its impact on the reduction of occupational segregation. The Government adds that the Good Labour Practices Code implemented in the private sector is a powerful political signal sent to employers concerning the importance of preventing discrimination in the enterprise. The Government also refers to other measures for the achievement of gender equality, and particularly the Government’s Gender Agenda for the period 2011–14, the Women Workers and Heads of Household Programme, intended to improve the employability and entrepreneurship of women with family responsibilities in the first, second and third quintiles, the 4 to 7 Programme, providing educational support for children aged from 6 to 13 after the school day to allow women with family responsibilities to work, and the Entrepreneurship Programme, which seeks to contribute to the sustainability of women and their businesses. The Committee however observes that the Government’s report does not contain information on the impact of the Plan for Equality of Opportunity for Women and Men 2000–2010 in reducing discrimination on the basis of gender. The Committee requests the Government to continue providing information on the implementation of the Iguala.cl programme in other economic sectors, to supply information on the impact of the Plan for Equality of Opportunity for Women and Men 2000–2010 and on the specific activities carried out by the SERNAM, including statistical data. The Committee further requests the Government to provide information on the measures adopted or envisaged in the context of the Plan for Equality of Opportunity for Men and Women 2011–2020, particularly to increase the participation rate of women in the labour market and to decrease occupational segregation.

The Committee notes Act No. 20595 of 17 May 2012 creating an employment subsidy for women, section 21 of which provides that dependent and self-employed women workers between 25 and 60 years of age belonging to the 40 per cent of the population who are most socio-economically vulnerable, and their respective employers, shall be entitled to the subsidy, which may be provided for each worker for four years continuously. The Committee requests the Government to provide information on the implementation of Act No. 20595 and statistics on its impact on the employment of the most socio-economically vulnerable women.

Public sector. The Committee asks the Government to provide updated information on the employment of women in the public sector, the implementation and compliance with the Good Labour Practices and Non-Discrimination Code in the central state administration and any other measures intended to increase the participation of women in the public sector, including in executive positions.

Sexual harassment. The Committee referred in previous comments to Act No. 20005 of 2005 respecting sexual harassment, which affords protection that is more limited than that foreseen in its 2002 general observation in terms of the persons to be protected, those who should be considered liable, the scope of application and victim protection procedures. In this regard, the Committee notes the Government’s indication that it will take the Committee’s comments into account when making amendments to the legislation and that it does not have information on complaints of sexual harassment. The Committee considers that the availability of precise information on the complaints made concerning sexual harassment and the action taken on them would allow a more precise evaluation of the effectiveness of the policies, procedures and remedies envisaged, and of existing prevention measures. The Committee once again requests the Government to provide information on complaints of sexual harassment at work lodged with the National Labour Directorate and the judicial authorities, and the complaints made under the Good Labour Practices and Non-Discrimination Code in the central state administration. The Committee further asks the Government to indicate whether progress has been made with the measures taken with a view to the amendment of Act No. 20005 in accordance with its 2002 general observation.

Retirement age of women. In its previous direct request, the Committee asked the Government to take measures with the view to the amendment of Legislative Decree No. 3500 of 1980 to harmonize the minimum retirement age for men and women and prevent women’s working life being cut short. In this regard, the Committee notes the Government’s indication that Legislative Decree No. 3500 only provides that women of 60 years of age and men of 65 years of age shall be entitled to an old-age pension, and that nothing prevents them from continuing to work if they so wish. The Government adds that Act No. 20255 of 2008 inserts a section into the Legislative Decree under which insured women who are over 60 years of age and under 65 who have not retired shall be entitled to the invalidity pension and any further benefits due in respect of a survivor’s pension. The Committee requests the Government to provide information on the manner in which the above provisions are applied and, where possible, the number of women who continue working after the age of 60.

Parts III and IV of the report form. Application in practice of the procedure for the protection of fundamental rights. The Committee notes that the Government has provided summaries of the decisions adopted in the context of the special procedure for the protection of fundamental workers’ rights established under Act No. 20087. The complaints lodged up to now have concerned discrimination on grounds of race and gender, including complaints concerning discrimination in the payment of remuneration and discrimination for reasons of disability. The Committee requests the Government to continue providing information on the decisions adopted in the context of the procedure for the protection of fundamental workers’ rights, together with a general evaluation of its operation, including the number of complaints lodged, the grounds for the complaints and any difficulties encountered in its application.

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

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.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 1(1)(b) of the Convention. Discrimination on the basis of disability. The Committee notes with interest Act No. 20422 of 10 February 2010, which establishes standards on equal opportunities and the social inclusion of persons with disabilities. Section 43 of the Act provides that the State, through its competent bodies, shall establish and implement affirmative action to promote inclusion of persons with disabilities in the labour market and non-discrimination at work. The Committee requests the Government to provide information regarding the impact of the Act in practice and on the programmes or actions implemented to promote the access of persons with disabilities to employment and vocational training.

Article 2. The Government indicates that it has undertaken to establish and implement policies and action plans to combat racism, racial discrimination and discrimination on the basis of sex. According to the Government, action plans are developed based on regional assessments and the creation of regional bodies with the participation of civil society. The Committee notes that three priority areas of intervention have been identified with a view to eliminating racism and discrimination: (1) the provision of training for public servants; (2) public policies and participation by citizens; and (3) the dissemination and communication of good practices concerning non-discrimination in the public and private sectors. The Committee requests the Government to continue providing information on the plans and programmes designed to contribute to eliminating discrimination in employment and occupation, including their impact.

Promoting equality between men and women in employment and occupation. The Committee notes that, according to statistics from the Economic Commission for Latin America (ECLAC), the rate of participation in economic activity of women continues to be much lower than for men, at 43.4 per cent and 73.2 per cent respectively. The Committee notes that, in the context of the Programme for Good Labour Practices and Gender Equality, the National Service for Women (SERNAM) aims to improve the participation of women in the labour market and their position by means of the “Iguala.cl” programme. The three key aims of the programme are to: (i) promote non-discrimination of women in access to the labour market; (ii) promote good labour practices and gender equality within enterprises and public services; and (iii) reduce occupational segregation. The Committee requests the Government to provide information on the impact that the “Iguala.cl” programme has had, particularly in reducing occupational segregation and the impact that the “Equal Opportunities Plan 2000–10” has had in reducing discrimination on the basis of sex in employment and occupation.

Furthermore, the Committee noted in previous comments that the Confederation of Production and Trade (CPC) has adapted the Code of Good Labour Practices to the needs of the private sector and has called on its enterprises to implement it. The Committee requests the Government to continue providing information on the concrete impact of the implementation of the Code of Good Labour Practices in addressing discrimination in the private sector.

Public sector. According to the “Study concerning the situation of women in the public services: The jobs we have, the jobs we want”, conducted in 2004, although women occupied nearly 60 per cent of public service posts in 2001, they occupied only 39.9 per cent of the total managerial posts and were found in areas with less mobility and in lower paid jobs. With regard to the implementation of the Code of Good Labour and Non-discrimination Practice in the Central State Administration, the Government indicates that in 2007, dissemination and self‑assessment activities were carried out in each service to evaluate developments in relation to the various aspects of the Code and to identify cases of good practice. The Committee requests the Government to include up-to-date information on the employment of women in the public sector and the three‑year plans for the implementation of the Code of Good Labour and Non‑discrimination Practice in the Central State Administration, and on the impact that those plans have had in reducing the gaps identified.

Sexual harassment. In its previous comments, the Committee referred to Act No. 20005, dated 8 March 2005, concerning sexual harassment and pointed out that the protection provided by the Act is more limited than foreseen in the Committee’s general observation of 2002 in terms of the persons to be protected, those to be considered liable, the scope of application and the procedures for protecting victims. With regard to the complaints lodged under provision 7(a) of the Code of Good Labour and Non-discrimination Practice in the Central State Administration, the Government indicates that persons are being appointed to receive complaints, public servants are being informed about sexual harassment and are receiving training, and the services already have procedures in place for the investigation of complaints relating to work-related harassment and sexual harassment and providing sanctions. The Committee once again requests the Government to envisage the possibility of amending Act No. 20005, taking into account its general observation of 2002 and to provide information on this matter. The Committee also requests the Government to provide up-to-date information in its next report concerning the complaints of sexual harassment in the workplace submitted to the National Labour Directorate and the national courts, as well as complaints under section 7(a) of the Code of Good Labour and Non-discrimination Practice in the Central State Administration.

The retirement age of women. The Committee notes Act No. 20.255 of March 2008 reforming social protection. The Committee notes that the Act establishes a system of solidarity pensions for old age and disability which supplements the pensions system established by Decree No. 3500 of 1980. The Committee notes that although the new Act provides for a single retirement age of 65 years, it has not amended the different retirement ages provided for under the general regime of Decree No. 3500 of 1980, which establishes a retirement age of 60 years for women and 65 years for men. In order to avoid shortening the working life of women in a discriminatory manner when they reach the statutory minimum age of retirement, the Committee requests the Government to provide information on any steps taken to amend Decree No. 3500 of 1980, so as to establish equality in the retirement age for men and women.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Application in practice of the procedure for the protection of fundamental rights. The Committee notes the Government’s indication that, as yet, no court decisions have been handed down pursuant to Act No. 20087 of 3 January 2006, which establishes a special procedure for the protection of the fundamental workers’ rights set out in article 19 of the Political Constitution of the Republic and section 2 of the Labour Code, but that it will provide relevant information concerning any court decisions handed down on this matter in future reports. The Government adds that Decision No. 2210/03, issued in June 2009, is designed to increase the effectiveness of the above Act and support public officials when examining administrative complaints relating to the violation of fundamental rights by standardizing procedures. The Committee requests the Government to provide information on any court decisions handed down pursuant to the special procedure to guarantee the right to equality in employment.

Discrimination based on sex. The Committee recalls that in its previous comments it requested the Government, with a view to granting spouses equal rights, to take steps to amend section 349 of the Code of Commerce, which provides that, unless at the time of the marriage, the couple made an agreement choosing the separate property regime, a married woman may not enter into a commercial partnership agreement without special permission from her husband. The Government indicates that the Bill amending the marriage regime (Bulletin No. 1707-18) is undergoing its second constitutional reading in the Constitution, Legislation, Justice and Regulations Commission of the Congress and that in view of the difficulties encountered in approving the Bill, a technical committee has been set up comprising representatives of the opposition, the National Service for Women and the Ministry of Justice and is currently working to achieve consensus on this matter. The Government indicates that it is hoped that the Committee will submit a proposal during the second half of 2010. The Committee requests the Government to continue providing information on the progress made in adopting the Bill amending the marriage regime to ensure that women who did not marry under the separate property regime may enter into a commercial partnership agreement without special permission from their husbands.

Discrimination on the ground of political opinion. The Committee recalls that it has been asking the Government for many years to explicitly repeal Legislative Decrees Nos 112 and 139 of 1973, 473 and 762 of 1974, 1321 and 1412 of 1976, as well as the provisions of certain rules in the statutes of various universities which allow the rectors of Chilean universities broad discretion to abolish academic and administrative posts. The Government once again points out that these Decrees have been tacitly repealed and superseded by certain legal texts which were enacted and published more recently, namely the Political Constitution of the Republic, Act No. 18875 establishing the general basis of the administration of the State and Act No. 18834 on the Administrative Statute. The Committee notes with interest that, for the first time, Legislative Decree No. 3 of 10 March 2006 of the Ministry of Education, published in the Official Journal of 2 October 2007, which establishes the by-laws of the University of Chile, does not include the possibility of expelling or refusing admission to teachers, students or administrative staff on grounds of their political activities. The Committee also notes that the statutes of the University of Santiago de Chile are currently being revised. The Committee once again requests the Government to take the necessary measures to expressly repeal Legislative Decrees Nos 112 and 139 of 1973, 473 and 762 of 1974, 1321 and 1412 of 1976 to ensure greater legislative coherence and requests the Government to include texts of the statutes of the country’s universities in its next report.

Indigenous peoples. The Committee notes that, on 15 September 2008, the Government of Chile ratified the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Committee will, therefore, continue to examine the matters relating to indigenous peoples in the context of its regular examination of the application of Convention No. 169.

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

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2 of the Convention. The Committee notes that the Government has not provided the information requested in its previous comments on the implementation of the National Plan to Overcome Discrimination in Chile. The Committee once again asks the Government to provide information on the content and implementation of the Plan as it relates to the application of the principle of the Convention.

Promoting equality between men and women in employment and occupation. The Committee notes the low female labour participation rate and its discontinuous nature, which appears to be caused by the lack of access of women to high-quality education and training, by family structures in which mothers continue to be the principal providers of childcare, by their lesser experience of the labour market and, finally, by traditional cultural values and attitudes concerning gender roles in the country, according to the Gender Assessment prepared by the World Bank, the Inter-American Development Bank and the National Service for Women (Government of Chile). In this respect, the Committee notes the measures adopted in the context of the programme “Chile grows with you” (Chile crece contigo) in support of children, which also facilitate the labour market integration of mothers, as well as Act No. 20166 of 12 February 2007 which recognizes the right of working mothers to nurse their children even in the absence of a nursing room. The Committee also notes the various
inter-sectoral agreements concluded by the SENCE (National Training and Employment Service) with a view to promoting equality for men and women in employment and occupation. In this respect, the Committee notes the establishment of a new Research Department entrusted, among other matters, with assessing the real impact of the gender perspective in SENCE programmes, particularly in relation to the National Service Work Programme of 2007, which includes the gender perspective. The Committee asks the Government to provide information on the measures adopted or envisaged to promote equality for men and women in employment and occupation by overcoming the obstacles that are still encountered preventing greater participation by women in the labour market, as identified in the paper referred to above, and their impact in practice.

The Committee further notes the Code of Good Labour and Non–discrimination Practice in the Central State Administration and the Guide to Good Practice in Combating Discrimination in the Enterprise, which apply to the public and private sectors, respectively. Both documents are intended to promote equality of opportunity and treatment for men and women, and particularly the balanced or joint representation of men and women in high-level managerial positions, and the more effective reconciliation of work and family responsibilities. For this purpose, standards are established for recruitment and selection processes, career development and access to training, the balanced or joint representation of men and women in managerial and executive positions, working conditions, protection of maternity rights and parental responsibilities, the reconciliation of work-related responsibilities and family obligations, and the prevention and punishment of work-related and sexual harassment at work. The Committee further notes that triennial implementation plans for the Code of Good Practices have been prepared. The Committee requests the Government to provide detailed information in its next report on the implementation of the Good Practice Guide for Enterprises and the Code of Good Practice for the Public Sector, with particular reference to the triennial implementation plans for the Code.

Public sector. The Committee once again asks the Government to provide a copy of the study prepared by the National Association of Tax Office Employees (ANEF) on the conditions and status of women in the public sector. It also reiterates its request for information on the progress made in the formulation of the Equal Opportunities Plan.

Sexual harassment. With reference to its previous comments relating to
Act No. 20005 dated 8 March 2005 respecting sexual harassment, the provisions of which are narrower than the Committee’s general observation of 2002, the Committee once again asks the Government to envisage the possibility of amending the Act, taking into account its general observation of 2002 and to keep it informed on this matter. The Committee further requests the Government to provide information on any complaints of sexual harassment at the workplace submitted to the national courts, and on the complaints made under provision 7(a) of the Code of Good Labour and Non-discrimination Practice for the Central State Administration.

The retirement age of women. Considering that, according to the Government’s report, a Bill for the reform of social protection is currently under examination, the Committee hopes that the Government will take this occasion to consider the possibility of amending Decree No. 3500 of 1980 with a view to establishing equality in the retirement age for women and men.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Legislative measures. The Committee notes with interest the reform of labour procedures introduced by Act No. 20087 of 3 January 2006 and, in particular, where such rights are prejudiced through the exercise of the employer’s powers, the establishment of a special procedure to guarantee the protection of the fundamental workers’ rights set out in article 19 of the Constitution and section 2 of the Labour Code. These rights include the right to equality. Under the terms of the Act, proceedings relating to workers’ fundamental rights benefit from preference in relation to all other procedures before the same court (section 488). The Act also provides that, where the evidence provided by the plaintiff constitutes sufficient proof that there has been a violation of fundamental rights, the defendant shall be under the obligation to explain the reasons why the measures were adopted and their proportional effect (section 493). The Committee asks the Government to provide information on the effect given to these provisions including and, in particular, the number and types of cases relating to the violation of the principle of equality of opportunity and treatment in employment and occupation brought to the courts under this Act and their outcome, with particular reference to the application of section 493. The Committee once again requests the Government to provide a copy of Ordinance No. 3704/134 of 11 August 2004, determining the meaning and scope of the second, third and fourth subsections of section 2 of the Labour Code relating to non-discrimination at work.

In its previous comments, the Committee had asked the Government to amend section 349 of the Code of Commerce which provides that, unless she married under the separate property regime, a married woman may not enter into a commercial partnership agreement without special permission from her husband, as well as the provisions of the Civil Code and supplementary legislation respecting the marriage regime and community of income, with a view to granting spouses equal rights. The Committee notes that, according to the Government’s report, amendments to section 349 of the Code of Commerce and of the marriage regime are envisaged in the Bill to amend the Civil Code and supplementary legislation respecting the marriage regime and community of income (Bulletin No. 1707-18). The Committee requests the Government to continue providing information on the progress of this Bill.

Discrimination on the ground of political opinion. In its previous observation, the Committee observed that for over ten years it had carried on an exchange with the Government on the issue of the explicit repeal of certain Legislative Decrees (Nos 112 and 139 of 1973, 473 and 762 of 1974, 1321 and 1412 of 1976) allowing the rectors of Chilean universities broad discretion to abolish academic and administrative posts, and section 55 of Legislative Decree No. 153 on the legal status of the University of Chile and the University of Santiago de Chile, under which teachers, students and administrative staff may be expelled from or refused admission to these two institutions on grounds of their political activities. In this respect, the Committee asked the Government to take the necessary measures to amend the national legislation so as to bring it into conformity with the Convention. The Committee regrets that no information has been received on this matter, and once again asks the Government to take the necessary measures to bring the national legislation into conformity with the Convention.

Indigenous peoples. With reference to its previous comments concerning the situation of indigenous peoples in the country, the Committee notes with interest that, on 8 September 2008, Chile ratified the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Committee also notes the Constitutional Reform Bill, which recognizes the indigenous peoples of Chile, is currently under examination by the Constitution, Legislation, Justice and Regulations Commission of the Senate and it hopes that all the aspects of the Convention will be duly taken into account in this context. The Committee asks the Government to provide information on the progress of the above Constitutional Reform Bill in relation to indigenous peoples, including information on the measures adopted to ensure the participation of indigenous peoples in this process.

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

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Article 2 of the Convention. The Committee notes the document entitled “General Basis of the National Plan to Overcome Discrimination in Chile” drawn up by the Interministerial Network and the Citizens Network in the context of the Tolerance and Non-Discrimination Programme for 2002 of the Social Organizations Division of the ministry responsible for communication between government and citizens. The Committee notes from the above document that the objective of the National Plan is to gradually phase out the various forms of discrimination and develop respect for social and cultural differences. The document also gives an account of the achievements, challenges, strategies and future actions of the abovementioned networks. The Committee requests the Government to provide information on the definition and implementation of the Plan, particularly as it relates to the application of the principle of the Convention.

2. Promoting equality in employment and occupation between men and women. The Committee notes the activities carried out by the National Service for Women (SERNAM) to promote equal opportunities between men and women workers by means of information campaigns both for employers and for workers, and by creating a high profile and offering incentives for good business practices regarding application of the principle of the Convention. From the information supplied by the Government in its report on the Equal Remuneration Convention, 1951 (No. 100), the Committee notes with interest that a system of training scholarships for women workers is being implemented through the social programmes of the National Training and Employment Service (SENCE). It also notes with interest the objectives, dynamic, activities and main achievements of the Public-Private Committee on Temporary Employment in Agriculture, and particularly the fact that the proceeds of tax breaks granted to employers in the agricultural exports sector goes to training for temporary women workers. The Committee also notes that, according to the Government, several enterprises in the mining sector have embarked on special programmes to integrate women into the sector. The Committee requests the Government to continue to provide information on the measures taken or envisaged to promote equality in employment and occupation between men and women, including providing educational opportunities and training for higher skills, thus opening the way to better paid jobs and avoiding horizontal and vertical segregation, and particularly measures to promote women’s access to non-traditional sectors of the economy. Please also provide information on the effect of these measures in practice.

3. Article 3(b). From the information supplied by the Government in its report on the application of Convention No. 100, the Committee notes that Ordinance No. 3704/134 of 11 August 2004, establishes the meaning and scope of the second, third and fourth paragraphs of section 2 of the Labour Code which concern non-discrimination at work, and that as part of the reform of the labour tribunals, special supervisory machinery has been set up to deal with breaches of certain constitutional safeguards by employers in the course of employment relations, including acts of discrimination. The Committee would be grateful if the Government would send a copy of the abovementioned ordinance and of the provisions regulating the special machinery, together with any practical results of its application, and copies of any decisions handed down.

4. Public sector. In its direct request of 2003, the Committee noted the financing of a study by the National Association of Tax Office Employees (ANEF) on the conditions and status of women in the public sector. It notes from the information in the Government’s report on Convention No. 100 that in 2005, CODELCO, the largest enterprise in the country, after consulting SERNAM started work on an Equal Opportunities Plan on the basis of a diagnosis of jobs and of recruitment and career development processes. The Committee again asks the Government to send a copy of the ANEF study and to keep it informed of any progress in developing the abovementioned Plan, and of the diagnosis on which it is based.

5. Sexual harassment. The Committee notes Act No. 20005 of 8 March 2005, which defines and prescribes penalties for sexual harassment. It also notes that the Labour Department is developing models for internal procedures that could be applied to various situations in enterprises so that enterprises can incorporate them in their internal rules, and that it is preparing material for mass information campaigns. It also notes that in the public sector, the reporting and investigation of sexual harassment is subject to general rules for investigation covering the administration’s liability, which are to be incorporated in the various statutes, and that the ministries and departments are implementing internal procedures for processing such cases. The Committee observes that the abovementioned Act is narrower than the Committee’s general observation of 2002 in terms of the persons to be protected and those to be considered liable: in terms of areas of application (training stage, access to employment, place of work, etc.) and in terms of procedures for protecting victims. The Committee hopes that the Government will envisage the possibility of amending the abovementioned Act, taking account of the general observation of 2002. It would be grateful if the Government would provide copies of any decisions regarding complaints processed under the abovementioned Act and those processed in the public sector, to enable the Committee to assess how the Convention is applied in practice. Please provide information on the model internal procedures that the Labour Department is preparing for the private sector and on the internal procedures for the public sector. Please also report on any information and awareness-raising measures and on training.

6. Amendment of the Civil Code. With reference to the Bill (Bulletin
No. 1707-18) submitted in 1995 to amend the Civil Code and supplementary laws on joint ownership or the sharing of acquired property and affording equal rights to the wife and the husband, which would be positive for the professional activity of women, the Committee notes the progress made on these initiatives in Parliament. It requests the Government to continue to provide information on the process of enactment of the amendments and to take the necessary steps to remove from the Civil Code the marital status requirement in the terms in which it is established, and for the proposed amendments to be adopted.

7. Women’s age of retirement. For several years, the Committee has been asking the Government to reconsider the possibility of introducing amendments to Decree No. 3500 of 1980, in order to establish equality between men and women as to retirement age. The Committee trusts that the Government will reconsider its position in the light of the principle of equality of opportunity and treatment in employment and occupation as contained in the Convention.

8. Indigenous peoples. In its comments of 2003, the Committee noted that the Bill (Bulletin No. 513-07) to amend the Constitution in order to give constitutional recognition to indigenous peoples was rejected on 17 October 2000 and that the draft accord on the Indigenous and Tribal Peoples Convention, 1989 (No. 169), submitted in January 1991, was still before Parliament. The Committee again asks the Government to provide information on the progress of the abovementioned draft accord and hopes that it will continue to give consideration to ratifying Convention No. 169.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Article 3(b) of the Convention. The Committee notes the adoption of Act No. 20034 of 5 July 2005 merging the ranks of male and female police officers, and the Ministry of Foreign Affairs’ Decree No. 84 of 12 April 2005, adopting the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. It also notes the Bill establishing legal machinery for complaints of arbitrary discrimination which allows claims to the reinstatement of rights and proper redress to be processed rapidly and which may be applied to the instances of discrimination at work set forth in the Convention. The Committee requests the Government to keep it informed of the Bill’s progress.

2. Article 3(c). The Committee has for many years asked the Government to amend section 349 of the Commercial Code which provides that, unless she married under the separate estate regime, a woman may not enter into a commercial partnership agreement without special permission from her husband. The Committee trusts that the Government will take the necessary steps to amend section 349 of the Commercial Code to ensure that women, regardless of their marital status and the matrimonial economic regime they and their husbands choose, no longer require prior authorization from their husbands to enter into commercial partnerships so that they may carry on their professional activities on an equal footing with men.

3. Discrimination on ground of political opinion. For more than ten years, the Committee has carried on an exchange with the Government in which it has sought the express repeal of certain legislative decrees (Nos. 112 and 139 of 1973, 473 and 762 of 1974, 1321 and 1412 of 1976) allowing the rectors of Chilean universities broad discretion to abolish academic and administrative posts. The Committee has also sought the express repeal of section 55 of Legislative Decree No. 153 on the Legal Status of the University of Chile, and the Legal Status of the University of Santiago de Chile under which teachers, students and administrative staff may be expelled from or refused admission to these two institutions because of their political activities. In the course of that exchange, the Government has stressed that the abovementioned provisions do not apply as they have been tacitly repealed. The Committee noted in its comments of 2003 that the draft framework law submitted in 1997 for the preparation of new statutes for state universities establishing that such statutes may not include provisions that are discriminatory, had been shelved. The Committee therefore requests the Government once again to take the necessary steps to bring the national legislation into line with the provisions of the Convention.

4. Indigenous peoples. In its comments of 2003, the Committee noted the results of the Sixth National Socio-economic Survey, 1996 (CASEN 96), sent by the Government, and observed that in terms of income distribution and average income there was a marked segregation of indigenous people from the non-indigenous population. It also noted that 67.9 per cent of indigenous women were not active, while the figure for men was 24.2 per cent. Furthermore, with regard to economic activity, the majority of indigenous workers were concentrated in agriculture and fishing (25 per cent) and in unskilled work (31.2 per cent). The illiteracy rate was 10 per cent for indigenous people as compared with 4.4 per cent for non-indigenous people. Some 54.9 per cent of young indigenous persons under 25 years of age attend an educational institution as compared with 61.6 per cent of non-indigenous young people. In view of these figures, the Committee asks once again the Government to supply information on the measures being taken to ensure equality of opportunity in employment and occupation for the country’s indigenous peoples. It requests the Government to provide such information in its next report.

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

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

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request which read as follows:

1. The Committee noted in its previous comment the Government’s indication concerning the legislative procedure for the examination of two Bills (Bulletins Nos. 1419-07 and 2665-18). It also notes the information provided in the Government’s last report on the existence of an administrative mechanism for dealing with complaints of sexual harassment. The Committee requests the Government to continue providing information on the progress made with the above Bills and to provide a copy of them when they have been adopted. It also trusts that, in the examination of these Bills, the various aspects referred to in its general observation of 2002 will be taken into account, especially with regard to: the scope of the definition of sexual harassment ("quid pro quo" and "hostile work environment"); the scope of who is protected and who may be considered liable; and the scope of protection (vocational training, access to employment, the workplace, etc.). The Committee also notes with interest the first court ruling recognizing sexual harassment in Chile, issued by the Supreme Court on 9 April 2003.

2. With reference to its previous comments on the amendment of section 349 of the Commercial Code, which provides that a married woman who is not covered by the marital regime of the individual ownership of property may only enter into a commercial partnership agreement with the special authorization of her husband, the Committee would be grateful if the Government would indicate whether any progress has been made in the adoption of the Bill (Bulletin No. 1707-18) submitted in 1995 to amend the Civil Code and the supplementary legislation respecting joint ownership and the sharing of acquired property and affording equal rights to the wife and the husband. The Committee reminds the Government once again that distinctions based on marital status are of a discriminatory nature as they presuppose the imposition on a person of a specified sex of a requirement or condition which is not imposed on the other sex, and that such distinctions may amount to a restriction on women being able to exercise their professional activity under equal conditions with men.

3. The Committee notes the information contained in the introduction to the Plan for Equality of Opportunity between Women and Men, 2000-10, according to which the higher level of participation of women in the labour market has not given rise to substantial changes in conceptions of gender, nor to an improvement in the quality of their jobs. According to the Plan, there are mechanisms of direct and indirect discrimination operating in the labour market which prevent women from developing and advancing at work. The Committee notes the statement that the employment opportunities of women in the labour market are restricted to certain lower-productivity and lower-paid jobs; disadvantages also exist such as those related to the quality of education provided to girls and young women; the lower level of training or the limited opportunities for training for activities considered to be socially appropriate for women; a lower level of work experience; the availability of women for fewer hours and career interruptions for maternity and bringing up children. The Committee also notes from the information contained in the wording of the Plan that the problems of women vary with their age; young women are confronted with high unemployment rates; women of reproductive age suffer from restrictions in employment and are affected by higher health costs and the need to provide for and care for young children; while there is a high probability of older women earning inadequate wages that are lower than those of men. The Committee requests the Government to provide information on the measures adopted or envisaged to promote equality in employment and occupation between men and women, including higher levels of education and training to gain access to better-paid jobs and prevent horizontal and vertical segregation.

4. The Committee notes the information provided by the Government in its report on the application of Convention No. 100 concerning the promotion by the National Women’s Service (SERNAM) in public and private enterprises of a policy entitled "good enterprise practices for equality of opportunity for men and women in the world of work". The Committee also notes with interest the establishment of the Public-Private Temporary Agricultural Employment Committee to improve the working conditions of temporary women workers in the agro-export sector. The Committee further notes the financing of a study by the National Association of Tax Office Employees (ANEF) on the conditions and situation of women in the public sector. The Committee would be grateful if the Government would provide a copy of the above study.

5. The Committee notes the information provided in the Government’s report under Convention No. 100 on the activities of the technical teams with the participation of SERNAM, the National Training and Employment Service and the Ministry of Education which are responsible for agreeing on measures to promote the access of women to non-traditional sectors of the economy. In this respect, the Committee notes the ministerial undertakings made on 7 March 2002, with particular reference to the sponsorship by the Ministry of Mines to analyse the presence of women in the mining sector. The Committee requests the Government to provide information on the impact of the activities and undertakings referred to in promoting the access of women to non-traditional sectors of the economy.

6. The Committee notes that the Government has not provided in its report the information requested in its previous comment and is therefore bound to reiterate its comments on the following matters:

2. With reference to its comments concerning the retirement age of women, which is 60 years, while that of men is 65, the Committee notes the Government’s statement indicating that it is not envisaging the possibility of amending Decree No. 3500 of 1980. The Committee notes that the possibility for women to have access to a pension at 60 years of age, even though it is the statutory minimum age, may encourage employers to impose earlier retirement on women, thereby cutting short their employment period. The Committee hopes that the Government will reconsider its position in the light of the principle of equality of opportunity and treatment in employment and occupation.

6. The Committee notes that the Bill (Bulletin No. 513-07) introducing a constitutional amendment to afford constitutional recognition to indigenous peoples was rejected on 17 October 2000, and that the draft Accord respecting Convention No. 169 on indigenous peoples, submitted in January 1991, is still before Parliament. The Committee requests the Government to continue providing information on the progress of the above draft text.

7. The Committee notes the data obtained from the VIth National Socio-Economic Survey (CASEN 96), 1996, showing that, with regard to the distribution of income, 65.21 per cent of the indigenous population are in the two poorest quintiles, in contrast with the figure for the non-indigenous population, which is 44.1 per cent. The average income of indigenous persons is US$120.66, while the figure for the non-indigenous population is US$217.91. The Committee also notes that 67.9 per cent of indigenous women are not active, while the figure for men is 24.2 per cent. With regard to their economic activities, a large part of the indigenous population is concentrated in agricultural, stock-raising and fishing activities (25 per cent) and in unskilled work (31.2 per cent). Furthermore, their illiteracy rate is 10 per cent, while the figure for the non-indigenous population is 4.4 per cent. Some 54.9 per cent of young indigenous persons under 25 years of age attend an educational institution, in comparison with a figure for young non-indigenous persons of 61.6 per cent. The Government refers in its report to a study on the vocational integration of indigenous persons into the labour market in the Metropolitan Region in 2001, but the data provided correspond to those of the CASEN VI Survey. The Committee would be grateful if the Government would provide a copy of the above study. Furthermore, the Committee requests the Government to continue providing information on the measures that are being taken to guarantee equality of opportunity in employment and occupation for the indigenous population in the country.

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

1. The Committee notes with interest the amendment made to section 2 of the Labour Code by Act No. 19812 of 13 June 2002, broadening protection against discrimination in employment on grounds of previous debts, with the exception of workers who have general administrative responsibilities or whose functions relate to the collection, administration or management of funds or assets. It also notes the administrative decision dated 18 November 2002, which found to be discriminatory the requirement of a certificate attesting to any penal or criminal record for labour purposes, and the ruling of 11 February 2003 which found to be discriminatory and penalized job offers referring in their requirements to some of the conditions envisaged in section 2 of the Labour Code (grounds of discrimination).

2. The Committee notes that the Government has not replied in its report to the request for information in its previous comment concerning discrimination on grounds of political opinion. The Government once again reiterated that the Legislative Decrees (Nos. 112 and 139 of 1973, 473 and 762 of 1974, and 1321 and 1412 of 1976) which grant broad discretionary powers to the vice-chancellors of universities to terminate the contracts of employment of academic and administrative personnel are no longer in force and that the necessary conditions do not currently exist for their application, as they were issued under absolutely exceptional historical circumstances, which have now been superseded. Despite the fact that the Civil Code in sections 52 and 53 provides for the tacit repeal of a law through the enactment of new provisions which cannot be reconciled with the previous legislation, the Committee repeats its previous comments and emphasizes that in its view the best way of ensuring that there is no uncertainty with regard to the positive law that is in force is to explicitly repeal provisions which are not effectively in force. Furthermore, with regard to section 55 of Legislative Decree No. 153 of 19 January 1982 issuing the statutes of the University of Chile and section 35 of Legislative Decree No. 149 of 7 May 1982 regulating the statutes of the University of Santiago de Chile, the Committee notes that they still have not been amended or repealed, as it requested in previous comments. Moreover, the Committee notes that the Framework Bill respecting state universities submitted in 1997 has currently been put aside. The Committee once again requests the Government to take the necessary measures to bring the national legislation into compliance with the provisions of the Convention.

3. The Committee notes that the Government has not replied to its comments concerning the amendment of section 349 of the Commercial Code, which provides that a married woman who is not covered by the marital regime of the individual ownership of property may only enter into a commercial partnership agreement with her husband’s special authorization. The Committee hopes that the Government will once again consider the possibility of amending section 349 of the Commercial Code so as to ensure that women, irrespective of their civil status and the marital property regime that they and their spouses have selected, may conclude commercial partnership agreements without the prior authorization of their spouse and exercise their professional activities under equal conditions with men. The Committee refers to this matter in greater detail in a direct request.

The Committee is also addressing a request directly to the Government on other points.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided by the Government in its report, as well as the information attached.

1. The Committee noted in its previous comment the Government’s indication concerning the legislative procedure for the examination of two Bills (Bulletins Nos. 1419-07 and 2665-18). It also notes the information provided in the Government’s last report on the existence of an administrative mechanism for dealing with complaints of sexual harassment. The Committee requests the Government to continue providing information on the progress made with the above Bills and to provide a copy of them when they have been adopted. It also trusts that, in the examination of these Bills, the various aspects referred to in its general observation of 2002 will be taken into account, especially with regard to: the scope of the definition of sexual harassment ("quid pro quo" and "hostile work environment"); the scope of who is protected and who may be considered liable; and the scope of protection (vocational training, access to employment, the workplace, etc.). The Committee also notes with interest the first court ruling recognizing sexual harassment in Chile, issued by the Supreme Court on 9 April 2003.

2. With reference to its previous comments on the amendment of section 349 of the Commercial Code, which provides that a married woman who is not covered by the marital regime of the individual ownership of property may only enter into a commercial partnership agreement with the special authorization of her husband, the Committee would be grateful if the Government would indicate whether any progress has been made in the adoption of the Bill (Bulletin No. 1707-18) submitted in 1995 to amend the Civil Code and the supplementary legislation respecting joint ownership and the sharing of acquired property and affording equal rights to the wife and the husband. The Committee reminds the Government once again that distinctions based on marital status are of a discriminatory nature as they presuppose the imposition on a person of a specified sex of a requirement or condition which is not imposed on the other sex, and that such distinctions may amount to a restriction on women being able to exercise their professional activity under equal conditions with men.

3. The Committee notes the information contained in the introduction to the Plan for Equality of Opportunity between Women and Men, 2000-10, according to which the higher level of participation of women in the labour market has not given rise to substantial changes in conceptions of gender, nor to an improvement in the quality of their jobs. According to the Plan, there are mechanisms of direct and indirect discrimination operating in the labour market which prevent women from developing and advancing at work. The Committee notes the statement that the employment opportunities of women in the labour market are restricted to certain lower-productivity and lower-paid jobs; disadvantages also exist such as those related to the quality of education provided to girls and young women; the lower level of training or the limited opportunities for training for activities considered to be socially appropriate for women; a lower level of work experience; the availability of women for fewer hours and career interruptions for maternity and bringing up children. The Committee also notes from the information contained in the wording of the Plan that the problems of women vary with their age; young women are confronted with high unemployment rates; women of reproductive age suffer from restrictions in employment and are affected by higher health costs and the need to provide for and care for young children; while there is a high probability of older women earning inadequate wages that are lower than those of men. The Committee requests the Government to provide information on the measures adopted or envisaged to promote equality in employment and occupation between men and women, including higher levels of education and training to gain access to better-paid jobs and prevent horizontal and vertical segregation.

4. The Committee notes the information provided by the Government in its report on the application of Convention No. 100 concerning the promotion by the National Women’s Service (SERNAM) in public and private enterprises of a policy entitled "good enterprise practices for equality of opportunity for men and women in the world of work". The Committee also notes with interest the establishment of the Public-Private Temporary Agricultural Employment Committee to improve the working conditions of temporary women workers in the agro-export sector. The Committee further notes the financing of a study by the National Association of Tax Office Employees (ANEF) on the conditions and situation of women in the public sector. The Committee would be grateful if the Government would provide a copy of the above study.

5. The Committee notes the information provided in the Government’s report under Convention No. 100 on the activities of the technical teams with the participation of SERNAM, the National Training and Employment Service and the Ministry of Education which are responsible for agreeing on measures to promote the access of women to non-traditional sectors of the economy. In this respect, the Committee notes the ministerial undertakings made on 7 March 2002, with particular reference to the sponsorship by the Ministry of Mines to analyse the presence of women in the mining sector. The Committee requests the Government to provide information on the impact of the activities and undertakings referred to in promoting the access of women to non-traditional sectors of the economy.

6. The Committee notes that the Government has not provided in its report the information requested in its previous comment and is therefore bound to reiterate its comments on the following matters:

2. With reference to its comments concerning the retirement age of women, which is 60 years, while that of men is 65, the Committee notes the Government’s statement indicating that it is not envisaging the possibility of amending Decree No. 3500 of 1980. The Committee notes that the possibility for women to have access to a pension at 60 years of age, even though it is the statutory minimum age, may encourage employers to impose earlier retirement on women, thereby cutting short their employment period. The Committee hopes that the Government will reconsider its position in the light of the principle of equality of opportunity and treatment in employment and occupation.

6. The Committee notes that the Bill (Bulletin No. 513-07) introducing a constitutional amendment to afford constitutional recognition to indigenous peoples was rejected on 17 October 2000, and that the draft Accord respecting Convention No. 169 on indigenous peoples, submitted in January 1991, is still before Parliament. The Committee requests the Government to continue providing information on the progress of the above draft text.

7. The Committee notes the data obtained from the VIth National Socio-Economic Survey (CASEN 96), 1996, showing that, with regard to the distribution of income, 65.21 per cent of the indigenous population are in the two poorest quintiles, in contrast with the figure for the non-indigenous population, which is 44.1 per cent. The average income of indigenous persons is US$120.66, while the figure for the non-indigenous population is US$217.91. The Committee also notes that 67.9 per cent of indigenous women are not active, while the figure for men is 24.2 per cent. With regard to their economic activities, a large part of the indigenous population is concentrated in agricultural, stock-raising and fishing activities (25 per cent) and in unskilled work (31.2 per cent). Furthermore, their illiteracy rate is 10 per cent, while the figure for the non-indigenous population is 4.4 per cent. Some 54.9 per cent of young indigenous persons under 25 years of age attend an educational institution, in comparison with a figure for young non-indigenous persons of 61.6 per cent. The Government refers in its report to a study on the vocational integration of indigenous persons into the labour market in the Metropolitan Region in 2001, but the data provided correspond to those of the CASEN VI Survey. The Committee would be grateful if the Government would provide a copy of the above study. Furthermore, the Committee requests the Government to continue providing information on the measures that are being taken to guarantee equality of opportunity in employment and occupation for the indigenous population in the country.

The Committee trusts that the Government will provide information on all the questions raised in its next report.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided by the Government in its report and the information attached.

1. The Committee notes with interest the amendment made to section 2 of the Labour Code by Act No. 19812 of 13 June 2002, broadening protection against discrimination in employment on grounds of previous debts, with the exception of workers who have general administrative responsibilities or whose functions relate to the collection, administration or management of funds or assets. It also notes the administrative decision dated 18 November 2002, which found to be discriminatory the requirement of a certificate attesting to any penal or criminal record for labour purposes, and the ruling of 11 February 2003 which found to be discriminatory and penalized job offers referring in their requirements to some of the conditions envisaged in section 2 of the Labour Code (grounds of discrimination).

2. The Committee notes that the Government has not replied in its report to the request for information in its previous comment concerning discrimination on grounds of political opinion. The Government once again reiterated that the Legislative Decrees (Nos. 112 and 139 of 1973, 473 and 762 of 1974, and 1321 and 1412 of 1976) which grant broad discretionary powers to the vice-chancellors of universities to terminate the contracts of employment of academic and administrative personnel are no longer in force and that the necessary conditions do not currently exist for their application, as they were issued under absolutely exceptional historical circumstances, which have now been superseded. Despite the fact that the Civil Code in sections 52 and 53 provides for the tacit repeal of a law through the enactment of new provisions which cannot be reconciled with the previous legislation, the Committee repeats its previous comments and emphasizes that in its view the best way of ensuring that there is no uncertainty with regard to the positive law that is in force is to explicitly repeal provisions which are not effectively in force. Furthermore, with regard to section 55 of Legislative Decree No. 153 of 19 January 1982 issuing the statutes of the University of Chile and section 35 of Legislative Decree No. 149 of 7 May 1982 regulating the statutes of the University of Santiago de Chile, the Committee notes that they still have not been amended or repealed, as it requested in previous comments. Moreover, the Committee notes that the Framework Bill respecting state universities submitted in 1997 has currently been put aside. The Committee once again requests the Government to take the necessary measures to bring the national legislation into compliance with the provisions of the Convention.

3. The Committee notes that the Government has not replied to its comments concerning the amendment of section 349 of the Commercial Code, which provides that a married woman who is not covered by the marital regime of the individual ownership of property may only enter into a commercial partnership agreement with her husband’s special authorization. The Committee hopes that the Government will once again consider the possibility of amending section 349 of the Commercial Code so as to ensure that women, irrespective of their civil status and the marital property regime that they and their spouses have selected, may conclude commercial partnership agreements without the prior authorization of their spouse and exercise their professional activities under equal conditions with men. The Committee refers to this matter in greater detail in a direct request.

The Committee is also addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the detailed information provided by the Government in its report.

1. Further to its observation and with regard to the amendment of section 349 of the Commercial Code, which provides that a married woman who is not covered by the marital regime of the individual ownership of property may only enter into a commercial partnership agreement with the special authorization of her husband, the Committee notes the Government’s statements. The Committee acknowledges the existence of different marital property regimes and the resulting types of property administration between spouses in Chile, namely joint ownership, individual ownership and the sharing of acquired property introduced by Act No. 19335 of 23 September 1994. The Committee understands that the spouses in practice enjoy the faculty to select voluntarily their marital property regime both when contracting marriage and subsequently. It also notes that the joint ownership regime, "designed as a system for the joining of property between the husband and the wife, with its centralized single administration in the hands of the husband, including the wife’s own property", presupposes the existence of a legal system which establishes different rights and duties for women and for men. The joint ownership regime is the default legal regime, which means that where it is not otherwise agreed a regime is automatically applied which restricts the independence of the wife and her freedom to dispose of her property. The Committee notes that the Bill submitted in 1995 (Bulletin 1707-18) introducing amendments to the Civil Code and supplementary legislation respecting joint ownership and the sharing of acquired property is currently under examination and affords equal rights to the wife and the husband. The Committee recalls that distinctions based on marital status are of a discriminatory nature as they presuppose the imposition on a person of a specified sex of a requirement or condition which is not imposed on the other sex, and that such distinctions may amount to a restriction on women being able to exercise their professional activity under equal conditions with men.

2. With reference to its comments concerning the retirement age of women, which is 60 years, while that of men is 65, the Committee notes the Government’s statement indicating that it is not envisaging the possibility of amending Decree No. 3500 of 1980. The Committee notes that the possibility for women to have access to a pension at 60 years of age, even though it is the statutory minimum age, may encourage employers to impose earlier retirement on women, thereby cutting short their employment period. The Committee hopes that the Government will reconsider its position in the light of the principle of equality of opportunity and treatment in employment and occupation.

3. The Committee notes from the data compiled in the National Employment Survey that the activity rate for the population of 15 years and over for women in 2000 continued to be 35 per cent compared with a rate of 72.9 per cent for men. The unemployment rate for women fell by 0.6 per cent in comparison with 1999. The Committee also notes that women are concentrated in the labour market in the services and commercial sectors, and that this situation did not change between 1996 and 1999. Women are predominant in the services sector (54 per cent), while in the commercial sector, even though they are not in the majority, their presence increased between 1996 and 1999 (43.9 per cent and 45.6 per cent respectively). Another branch of the economy in which there was a certain increase in women workers was in public utility services, where the increase was a little higher than 4 per cent. The Committee notes the information provided by the Government concerning the activities of the National Women’s Service (SERNAM) and the National Training and Employment Service (SENCE) to facilitate the access of women workers, particularly those with low incomes, to the various programmes of vocational training provided by the Service. The Committee requests the Government to provide information on the measures envisaged to promote the occupational opportunities of women so as to avoid their concentration in occupations traditionally considered as being feminine.

4. The Committee notes that the Plan for Equality of Opportunities between Men and Women, 2000-10 in contrast with the first plan (1994-99), does not propose specific action, but sets out policy objectives to be achieved at the level of the communes and regions through operational plans. The Committee requests the Government to provide information, including results, based on the periodical evaluation indicators for policies intended to promote equality in employment and occupation between men and women.

5. The Committee notes the Government’s statement that the Bill on sexual harassment (Bulletin No. 1419-07), is currently before Parliament. It also notes that the Bill submitted on 18 January 2001 (Bulletin No. 2665-18), establishing rules respecting sexual harassment, is also being examined by the Chamber of Deputies. The Committee requests the Government to continue providing information on the progress made by the above Bills and to provide copies of them when they have been adopted. The Committee also refers the Government to its general observation on sexual harassment.

6. The Committee notes that the Bill (Bulletin No. 513-07) introducing a constitutional amendment to afford constitutional recognition to indigenous peoples was rejected on 17 October 2000, and that the draft Accord respecting Convention No. 169 on indigenous peoples, submitted in January 1991, is still before Parliament. The Committee requests the Government to continue providing information on the progress of the above draft text.

7. The Committee notes the data obtained from the VIth National Socio-Economic Survey (CASEN 96), 1996, showing that, with regard to the distribution of income, 65.21 per cent of the indigenous population is in the two poorest quintiles, in contrast with the figure for the non-indigenous population, which is 44.1 per cent. The average income of indigenous persons is US$120.66, while the figure for the non-indigenous population is US$217.91. The Committee also notes that 67.9 per cent of indigenous women are not active, while the figure for men is 24.2 per cent. With regard to their economic activities, a large part of the indigenous population is concentrated in agricultural, stock-raising and fishing activities (25 per cent) and in unskilled work (31.2 per cent). Furthermore, their illiteracy rate is 10 per cent, while the figure for the non-indigenous population is 4.4 per cent. Some 54.9 per cent of young indigenous persons under 25 years of age attend an educational institution, in comparison with a figure for young non-indigenous persons of 61.6 per cent. The Government refers in its report to a study on the vocational integration of indigenous persons into the labour market in the Metropolitan Region in 2001, but the data provided correspond to those of the CASEN VI Survey. The Committee would be grateful if the Government would provide a copy of the above study. Furthermore, the Committee requests the Government to continue providing information on the measures that are being taken to guarantee equality of opportunity in employment and occupation for the indigenous population in the country.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes with interest the amendments made to the Labour Code by means of Acts Nos. 19739 of 26 June 2001 and 19759 of 11 September 2001, which extend protection against discrimination in employment. With the inclusion of national extraction as a prohibited ground of discrimination in employment and occupation, all of the grounds set out in the Convention are now covered. Furthermore, the Committee notes that age and civil status of persons have been introduced as prohibited grounds of discrimination in employment and occupation.

2. The Committee notes the information provided by the Government in its report concerning discrimination on grounds of political opinion. The Government once again indicates that the Legislative Decrees (Nos. 112 and 139 of 1973, 473 and 762 of 1974, 1321 and 1412 of 1976) which grant wide discretionary powers to Chilean university vice-chancellors to suspend the contracts of persons in academic and administrative posts are no longer in force and that the necessary prerequisites do not currently exist for their application, as they were issued under absolutely exceptional historical circumstances which have now been superseded. Despite the fact that the Civil Code in sections 52 and 53 provides for the tacit repeal of a law through the enactment of new provisions which cannot be reconciled with the former legislation, the Committee repeats its previous comments and emphasizes that the best way of ensuring that there is no uncertainty with regard to the positive law that is in force is to repeal or amend explicitly laws or other provisions which are not effectively in force. Moreover, with regard to section 55 of Legislative Decree No. 153 of 19 January 1982 issuing the statutes of the University of Chile and section 35 of Legislative Decree No. 149 of 7 May 1982 regulating the statutes of the University of Santiago de Chile, the Committee notes that they still have not been amended or repealed as it requested in previous comments. Furthermore, the Committee notes that the Framework Bill respecting state universities submitted in 1997 has currently been put aside. The Committee once again requests the Government to take the necessary measures to bring the national legislation into compliance with the provisions of the Convention.

3. The Committee notes the Government’s statements with regard to its comments on the amendment of section 349 of the Commercial Code, which provides that a married woman who is not covered by the marital regime of the individual ownership of property may only enter into a commercial partnership agreement with her husband’s special authorization. The Committee hopes that the Government will once again consider the possibility of amending section 349 of the Commercial Code so as to ensure that women, irrespective of their civil status and the marital property regime which they and their spouses have selected, may conclude commercial partnership agreements without the prior authorization of their spouse and exercise their professional activities under equal conditions with men. The Committee refers to this matter in greater detail in a direct request.

The Committee is also addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the information supplied by the Government in reply to its previous comments regarding the activities undertaken by the National Women’s Service (SERNAM) to promote equality of opportunity and treatment between men and women in occupation and employment, particularly the studies conducted by SERNAM on the reconciliation of family and professional responsibilities in order to determine best practice in this sphere. With regard to equality of access by men and women to employment and occupation and to vocational training, the Committee notes the information supplied by the Government to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) which indicates that women have fewer opportunities for promotion and vocational training in employment than men and that few women occupy posts at the highest levels in the Chilean labour market (CEDAW/C/CHI/3). The Committee requests the Government to indicate any measures taken or envisaged to promote access of women to vocational training as well as greater participation in responsible, higher paid jobs.

2.  The Committee refers to its previous comments on section 349 of the Commercial Code, pursuant to which married women who have not wholly separated their assets from their husband’s must obtain their husband’s permission before entering into a commercial partnership agreement. The Government indicates in its report that men and women in Chile enjoy legal equality and refers to the 1999 reforms which enshrine this principle in articles 1 and 19 of the Chilean Constitution. The Government indicates that section 349 of the Commercial Code applies in a particular situation since it is the woman who, by selecting the marriage property regime on marriage, chooses voluntarily to be under her husband’s authority or not for the purposes of concluding a commercial partnership agreement. The Committee reminds the Government that Article 2 of the Convention requires the Government to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. The Committee notes that the conditions relating to marital status are not, in themselves, proof of discrimination, on the assumption that they apply to both sexes. On the other hand, the Committee considers that distinctions based on marital status are of a discriminatory nature, under the Convention, whenever their effect may impose on a person of a specified sex a requirement or condition which is not imposed on the other sex (see General Survey on equality in employment and occupation, 1988, paragraph 41). The Committee considers that the interaction between section 349 of the Commercial Code and the marital property regime creates a situation of inequality which is not compatible with a national policy of de jure and de facto equality between the sexes. The Committee therefore requests the Government to indicate whether it envisages amending section 349 of the Commercial Code in order to grant full legal capacity to women to conclude contracts, irrespective of the marriage property system chosen.

3.  The Committee notes that according to the information supplied by the Government to CEDAW, Act No. 3500 which establishes the current pension system, had a negative impact on Chilean women, chiefly because women occupy lower paid jobs and contribute for a shorter time to the system (CEDAW/PSWG/1999/II/CRP.1/Add.1). The Committee notes that the age for retirement in Chile is 60 for women and 65 for men which means that women have a shorter time to contribute to their individual pension account. Consequently, they have less capital in their account to finance retirement and a longer non-working period (ibid.). The Committee notes that SERNAM and the Social Security Department of the Ministry of Labour are considering the possibility of changing the current retirement system in order to eliminate existing inequalities. The Committee would be grateful if the Government would keep it informed of any measures taken or envisaged in this respect.

4.  Referring to its previous comments on the submission to the National Congress of a bill on sexual harassment, the Committee requests the Government to continue to keep it informed of the promulgation of the bill and to send it a copy once it has been adopted.

5.  In regard to non-discrimination on the grounds of ethnic origin, the Committee requests the Government to supply information on the labour situation of the Mapuche, Aymara and Rapanui ethnic minorities, including statistics on the employment of members of these minorities in the various economic sectors in the country. The Committee also requests the Government to indicate any measures taken to guarantee equality of opportunity and treatment to these ethnic groups, particularly in respect of access to vocational training, employment and occupation.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the information contained in the Government’s report, particularly the new legislation adopted concerning non-discrimination. It notes with interest that Act No. 19611 of 16 June 1999 amends articles 1 and 19 of the Chilean Constitution, and provides explicitly for legal equality between men and women. Furthermore, the Committee notes with interest the adoption of Act No. 19591 of 9 November 1998 which amends section 194 of the Labour Code. The new Act provides protection against discrimination for pregnant women workers and prohibits the requirement for a pregnancy test as a condition for employment. The Committee also notes with interest that Act No. 19638 of 14 October 1999 prohibits discrimination on the grounds of religious belief.

2.  In regard to discrimination on the grounds of political opinion, the Committee notes that for more than ten years it has been holding a dialogue with the Government requesting the explicit repeal of certain legislative decrees (Nos. 112 and 139 of 1973, 473 and 762 of 1974, 1321 and 1412 of 1976) which grant wide discretionary powers to Chilean university vice-chancellors to suspend academic and administrative posts. The Committee also asked the Government to repeal explicitly section 55 of Legislative Decree No. 153 on the by-laws of the University of Chile and that on the legal status of the University of Santiago de Chile, which both allow the expulsion from or non-admission to these institutions of academics, students and officials because of their political activities.

3.  The Government has reiterated once again that the legislative decrees in question have been repealed tacitly and are not in force. In its report, the Government indicates that it does not consider there to be failure to observe the Convention because the universities named in these legislative decrees are not currently subject to the authority of the vice-chancellors mentioned and that for this reason the bases necessary for the law to function do not exist. The report adds that most of the universities mentioned have adopted new statutes which establish the higher authorities by which they are governed. Despite the affirmation in the Government’s report, the Committee refers to its previous comments and requests the Government once again to repeal explicitly the legislative decrees in question in order to ensure that they cannot serve as a basis for preventing access to, or for excluding persons from, the universities mentioned in those instruments. The Committee notes that there is a draft framework act for the preparation of new statutes by the state universities and that the new statutes cannot include discriminatory provisions. The Committee requests the Government to continue to supply information about the state of the draft act, to advise the Committee as soon as it has been promulgated in law and to send it a copy for information.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes the information provided by the Government in response to its previous direct request, in which the Committee referred to the principle of equality of opportunity and treatment between men and women. It notes with interest the activities carried out between 1992 and 1997 by the National Women's Service (SERNAM) on different aspects of occupational guidance, vocational training and labour rights. The Committee also notes the presentation of a draft law on sexual harassment.

The Committee requests the Government to keep it informed with regard to the activities undertaken and the results obtained by SERNAM in achieving equality of opportunity and treatment between men and women and asks it to provide a copy of the sexual harassment law once it is adopted.

2. The Committee refers to section 349 of the Commercial Code, pursuant to which married women who have not wholly separated their assets from those of their husband's must obtain their husband's permission before entering into a partnership agreement. The Committee requests the Government to provide it with information regarding the measures taken or envisaged in order to secure the observance of the Convention, which guarantees equal access to employment for both men and women.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. For more than ten years, the Committee has requested that the Government explicitly repeal Decrees Nos. 112 and 139 of 1973, 473 and 762 of 1974, 1321 and 1412 of 1976, granting broad discretionary authority to university deans to suspend employees from academic and administrative posts. Similarly, for more than ten years, the Committee has asked the Government to repeal explicitly section 55 of Legislative Decree No. 153 on the By-laws of the University of Chile. The By-laws permit the University of Chile to expel or refuse the admittance of academics, students, and officials who have been expelled from another institution of higher learning for having violated the law. The Committee has also called for the explicit repeal of section 35 of Legislative Decree No. 149 (By-laws of the University of Santiago de Chile). According to this provision, persons who participate in activities involving partisan politics aimed at disrupting the public order and have been sanctioned by the competent authority may not register in the University of Santiago de Chile, regardless of whether they have the requisite qualifications to study there. Moreover, those who participate in activities of the same nature as those indicated above will lose their status as students.

2. Throughout its reports, the Government has reiterated its position that the above-referenced decrees were implicitly repealed upon the enactment of the university regulations, Legislative Decrees Nos. 148 to 164 of 1982, which govern this matter. On this point, the Committee has had the opportunity to observe that, the texts in question, while tacitly repealed, have served as the predicate for the enactment of the Regulation of Ethical Rules for students of the University of Concepción (Decree No. 84655), adopted by virtue of the faculties conferred by, inter alia, Decree No. 139 of 1973, which forms part of the group of implicitly repealed decrees. This fact points out the need for an explicit repeal of the above-mentioned decrees, in order to avoid any uncertainty with regard to the applicability or enforceability of the challenged decrees. The Committee notes that in its last report the Government states once again that the decrees in question have been implicitly repealed. The Committee regrets that the Government has not indicated any intention to repeal explicitly this legislation containing provisions that are incompatible with the non-discrimination policy enshrined in the Convention. Under these circumstances, the Committee cannot assure itself that, as required by the Convention, no one is denied access to or excluded from universities or other institutes of higher learning, whether as a student, academic or official, on the basis of the expression of political opinion.

3. The Committee notes the information provided by the Government with regard to the application of Acts Nos. 19234 and 19350, by virtue of which anticipatory benefits were accorded to persons exonerated for political reasons between 11 September 1973 and 10 March 1990.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Article 2 of the Convention. The Committee notes the various legal provisions prohibiting discrimination on the basis of race, colour, sex, religion, political opinion, national extraction and social origin, including the Labour Code of 1994, and the Government's statement that there is no discrimination, exclusion or preference in legislation, administrative practice or in relationships between persons or groups of persons on the grounds listed in the Convention and that there have been no complaints before the Labour Inspection Service. The Committee requests the Government to provide information on the methods taken to implement this policy in practice, including statistical data on the number of persons who have gained access to vocational training, employment and particular occupations with a breakdown by reference to race, colour, national extraction and sex.

2. The Committee notes from the report that sections 21 and 26 of Act No. 18.834 and 22 and 28 of Act No. 18.883 establish the non-discriminatory basis of selection and evaluation of candidates for entry to, respectively, the public administration services and municipal services. The Committee requests information on the number of women applicants, their rate of acceptance, and the posts they occupy. In this respect the Committee takes note of the National Service for Women (SERNAM) of the Ministry of Labour created by Act No. N-19.023 of 3 January 1991, and its Plan of Equality of Opportunity for Women elaborated in 1993. The Committee would appreciate receiving details on the work of SERNAM in relation to women's access to employment and professions, such as the 1993 seminar it co-hosted with the Office in Santiago de Chile on repercussions of productive reconversion and technological change on the employment and working conditions of women, and the participation of its Director in various national events such as the 1994 "Women and Employment" seminar.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

1. The Committee notes with interest the information regarding Act No. 19.234 of 5 August 1993 under which benefits will be granted to the workers dismissed for political reasons between the period of 11 September 1973 and 10 March 1990, in particular that the Institute de Normalización Previsional (INP), the responsible authority, has commenced its work in allocating pensions and other benefits (a large number of applications are, however, still pending). The Committee also notes that Act No. 19234 was amended by Act No. 19.350 of 14 November 1994 so as to expand its scope of application and to render formalities for applying for benefits more flexible. The Committee requests the Government in future reports, to continue to supply information on the practical application of the Act. 2. The Committee recalls its previous requests to the Government to provide information on progress made in two matters, namely: (a) the express repeal of Decrees Nos. 112 and 139 of 1973, Nos. 473 and 762 of 1974, and Nos. 1321 and 1412 of 1976 which grant broad discretionary powers of termination of employment to university rectors so as to preclude any ambiguity given the Government's indication that they have been tacitly repealed and are without effect; and (b) the repeal or amendment of section 55 of Decree No. 153 of 1951 (legal status of the University of Chile), and section 35 of Decree No. 149 of 1951 (statutes of the University of Santiago), in order to ensure that no one may be denied access to or expelled from universities or educational establishments on grounds prohibited by the Convention. As the most recent reports are silent on this legislation, the Committee repeats its request to the Government to provide information in its next report on legislative measures taken to bring the national legislation into conformity with the Convention as referred to above. 3. The Committee is raising other matters in a request addressed directly to the Government.

The Committee hopes that the Government will submit detailed information in its next report.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes with interest the Government's detailed report and the information provided regarding the constitutional, legislative and administrative provisions to apply the Convention. It requests the Government to provide further information in its next report on the following.

1. Article 2 of the Convention. The Committee notes the various legal provisions prohibiting discrimination on the basis of race, colour, sex, religion, political opinion, national extraction and social origin, including the Labour Code of 1994, and the Government's statement that there is no discrimination, exclusion or preference in legislation, administrative practice or in relationships between persons or groups of persons on the grounds listed in the Convention and that there have been no complaints before the Labour Inspection Service. The Committee requests the Government to provide information on the methods taken to implement this policy in practice, including statistical data on the number of persons who have gained access to vocational training, employment and particular occupations with a breakdown by reference to race, colour, national extraction and sex.

2. The Committee notes from the report that sections 21 and 26 of Act No. 18.834 and 22 and 28 of Act No. 18.883 establish the non-discriminatory basis of selection and evaluation of candidates for entry to, respectively, the public administration services and municipal services. The Committee requests information on the number of women applicants, their rate of acceptance, and the posts they occupy. In this respect the Committee takes note of the National Service for Women (SERNAM) of the Ministry of Labour created by Act No. N-19.023 of 3 January 1991, and its Plan of Equality of Opportunity for Women elaborated in 1993. The Committee would appreciate receiving details on the work of SERNAM in relation to women's access to employment and professions, such as the 1993 seminar it co-hosted with the Office in Santiago de Chile on repercussions of productive reconversion and technological change on the employment and working conditions of women, and the participation of its Director in various national events such as the 1994 "Women and Employment" seminar.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information in the Government's reports in response to its previous comments.

1. The Committee notes with interest the information regarding Act No. 19.234 of 5 August 1993 under which benefits will be granted to the workers dismissed for political reasons between the period of 11 September 1973 and 10 March 1990, in particular that the Instituto de Normalización Previsional (INP), the responsible authority, has commenced its work in allocating pensions and other benefits (a large number of applications are, however, still pending). The Committee also notes that Act No. 19.234 was amended by Act No. 19.350 of 14 November 1994 so as to expand its scope of application and to render formalities for applying for benefits more flexible. The Committee requests the Government in future reports, to continue to supply information on the practical application of the Act.

2. The Committee recalls its previous requests to the Government to provide information on progress made in two matters, namely: (a) the express repeal of Decrees Nos. 112 and 139 of 1973, Nos. 473 and 762 of 1974, and Nos. 1321 and 1412 of 1976 which grant broad discretionary powers of termination of employment to university rectors so as to preclude any ambiguity given the Government's indication that they have been tacitly repealed and are without effect; and (b) the repeal or amendment of section 55 of Decree No. 153 of 1951 (legal status of the University of Chile), and section 35 of Decree No. 149 of 1951 (statutes of the University of Santiago), in order to ensure that no one may be denied access to or expelled from universities or educational establishments on grounds prohibited by the Convention. As the most recent reports are silent on this legislation, the Committee repeats its request to the Government to provide information in its next report on legislative measures taken to bring the national legislation into conformity with the Convention as referred to above.

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

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

For several years the Government's information on the application of the Convention has been confined to discrimination on grounds of political opinion. The Committee therefore asks the Government in its next report to provide information on the manner in which it applies each Article of the Convention. In particular, it would be grateful for information on any measures taken to ensure effective promotion of equal opportunity and treatment, regardless of race, colour, sex, religion, national extraction or social origin, and on the results obtained, particularly as regards:

(a) access to vocational training;

(b) access to employment and particular occupations;

(c) terms and conditions of employment, and more specifically the measures taken to promote equality of opportunity and treatment:

(i) in employment, vocational training and occupational guidance under the direction of the Government;

(ii) by means of legislation and education programmes;

(iii) with the cooperation of employers' and workers' organizations and other appropriate bodies, particularly as regards employment in the private sector and matters not covered by collective agreements.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the Government's report and the information provided in response to its previous comments.

1. The Committee recalls that the workers' organization "Comando de Exonerados de Chile" alleged in 1991 that thousands of workers had been dismissed from their jobs for political reasons under the military dictatorship, and that the Government replied that a Bill had been submitted to the National Congress on 9 July 1991 to grant provisional benefits to workers dismissed for political reasons between 11 September 1973 and 10 March 1990 from jobs which were wholly or partly under state control. The Committee also recalls that the "Frente de Trabajadores Exonerados, Compañia Chilena de Tabacos S.A. y Chiletabacos S.A." requested in a communication of October 1992 that the scope of the Bill be extended to workers in the private sector who, although they were not dismissed through the intervention of the public authorities, were forced to resign after harassment due to their political opinions. In its previous observation, the Committee noted with interest that discussions of this issue between the Government and the Comando de Exonerados de Chile led to an agreement on 6 June 1992. In addition, the "Syndicato de Trabajadores No. 7, Codelco Chile, Division el Teniente" submitted observations in February 1992 on the dismissal of workers, purportedly because of their political opinions, in response to which the Government referred to the Bill and the agreement of 6 June 1992.

The Committee notes with interest that the above-mentioned Bill was adopted on 5 August 1993 and became Act No. 19.234 under which provisional benefits will be granted to workers dismissed for political reasons between 11 September 1973 and 10 March 1990. The Committee notes that under section 3, the new Act applies to the public and semi-public sector and to autonomous enterprises in which the State has a holding of at least 50 per cent, and that it does not therefore apply to the private sector as was requested by the "Frente de Trabajadores Exonerados". The Committee would be grateful if in its next report the Government would provide information on the effect given in practice to this new Act.

2. With regard to the communication sent in October 1992 by the "Frente de Trabajadores Exonerados" and particularly its observations on the labour contracts terminated between September 1973 and March 1990 for political reasons (the allegations concern 41 people), the Committee notes that the Government has produced a list of 32 workers concerned (the documents of the nine others are no longer available) with explanations of the termination of the contracts on the basis of information provided by the enterprise, to the effect that the workers concerned either resigned voluntarily or were lawfully dismissed by the enterprise. The Committee also takes note of the individual documents appended to this information as evidence of the workers' consent, in which the worker signed a statement to the effect that he had received all entitlements due and would make no further claims. In six cases, appended to these documents are decisions of the Labour Tribunal concerning complaints of unwarranted dismissal (filed by the workers concerned after they had left the enterprise). In all six judgements, dated 1974, 1978 and 1984, the Tribunal found for the enterprise. In these circumstances, the Committee has no further comments to make on this point.

3. The Committee also notes the Government's reply to the additional observations of the "Syndicato de Trabajadores No. 7, Codelco Chile, Division el Teniente", transmitted in February 1993, concerning the early retirement of a number of workers and discrimination in respect of employment on grounds of age. The Government states that the measures in question were taken in accordance with a rationalization plan in order to improve the alignment of the human resources of the autonomous State enterprise, Codelco Chile, with the company's real needs, that prior consultations were held with the workers and their representatives concerning incentives to early retirement, and that due account was taken of the relevant provisions of laws and contracts. The Committee considers that no further comments are called for on this matter.

4. In its previous comments, the Committee asked the Government to repeal expressly the Decrees (Nos. 112 and 139 of 1973, Nos. 473 and 762 of 1974, and Nos. 1321 and 1412 of 1976) which grant broad discretionary powers to university rectors to terminate the contracts of certain teaching and administrative staff. The Committee notes that the Government repeats its earlier statements that the above Decrees were tacitly repealed and are without effect in that the universities of the country, in accordance with their own statutes, have independently issued their own regulations; and that the Government has transmitted the Committtee's request to the Ministry of Education as it said it would in its previous report. The Committee notes that the Council of University Rectors considers that the decrees were tacitly repealed by the entry into force of Act No. 18.575 of December 1986 and Act No. 18.834 of September 1986, which govern conditions of employment in the public service, particularly job security, career development and procedures for termination of the employment relationship. In these circumstances, the Committee trusts that the Government will take the necessary measures to repeal explicitly the above Decrees so as to preclude any ambiguity in this matter.

The Committee also asked the Government to amend or repeal section 55 of Decree No. 153 of 1951 respecting the legal status of the University of Chile and section 35 of Decree No. 149 of 1951 regarding the Statutes of the University of Santiago to ensure that, in accordance with the Convention, no one may be denied access to or be expelled from universities or other educational establishments on grounds of political opinion, whether they be students, teachers or administrative staff. The Committee recalls that the Government has always maintained that no one may be expelled from an educational establishment for holding, demonstrating or expressing his or her political ideas, as this would be incompatible with the existing provisions of the Constitution and the law. The Committee therefore considers that there should be no major difficulty in taking the necessary legislative measures; it again asks the Government to take appropriate steps for the amendment or repeal of sections 55 and 35 of Decrees Nos. 153 and 149 in order to bring the legislation fully into conformity with the Convention.

The Committee asks the Government to supply information in its next report on progress made with regard to the changes in legislation referred to by the Committee in the two preceding paragraphs.

5. The Committee raises other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Further to its 1992 observation, the Committee takes note of the statement of the Government representative to the Conference Committee in June 1992, and of the information contained in the Government's last report. It also notes the observations of the Frente de Trabajadores Exonerados Compania Chilena de Tabacos S.A. y Chiletabacos S.A., dated October 1992 and of the Workers' Trade Union No. 7, División El Teniente, Codelco Chile, dated February 1993, which were sent to the Government for comments.

1. Regarding the 1991 comments from the Comando de Exonerados de Chile concerning dismissal from employment on political grounds under the military dictatorship, the Committee had noted that a draft Act had been placed before the National Congress on 9 July 1991 proposing provisional benefits for persons dismissed during the period 11 September 1973 to 10 March 1990 on political grounds from the public administration, from semi-state agencies and self-governing state enterprises, or from municipalities and for workers from private enterprises in which the public authority intervened. The Committee notes with interest that an agreement was reached on 6 June 1992 between the Ministry of Labour and the Comando de Exonerados de Chile (providing that persons dismissed for political reasons would have a right to new improvements in pensions, together with the opportunity to increase the amount, and that access to pensions would be considered together with means for easing the reintroduction of workers dismissed from the public service as well as improved access to opportunities for vocational training and small-scale enterprises) and that the draft Act was still under discussion in the Chamber of Deputies and then to be placed before the Senate. The Committee again requests the Government to supply a copy of the Act once it has been adopted and promulgated, together with information on its practical application.

2. The Committee also notes that in response to communications from the Workers' Trade Union No. 7, División El Teniente, Codelco Chile, received in February 1992, concerning the issue of dismissals from employment on political grounds before and after 10 March 1990, the Government refers to the current passage through Parliament of the above-mentioned draft Act and the 6 June 1992 agreement as evidence of its application of the Convention.

3. The Committee notes that the Frente de Trabajadores Exonerados Compania Chilena de Tabacos S.A. y Chiletabacos S.A. disputes the scope of this draft Act and asks that it be broadened to include those workers - such as its members - who were not dismissed through the intervention of public authorities, but who suffered indirectly forced resignations after harassment due to their political beliefs in private companies. The Committee hopes that the Government will supply its comments on this communication in its next report.

4. With regard to the Constitutional Reform Act No. 18825 of 16 August 1989 which repealed article 8 of the Constitution, and the possibility of acquitting persons convicted by the Constitutional Court of committing the acts specified in article 8, the Committee notes the Government's statement that no other persons were convicted for committing an act specified in article 8 and that the Constitutional Court has thus not rendered any other judgements in this regard.

5. Regarding its repeated requests to the Government to repeal explicitly certain Decrees (Nos. 112 and 139 of 1973; Nos. 473 and 762 of 1974 and Nos. 1321 and 1412 of 1976, which grant discretionary powers to university rectors to terminate the contracts of teaching and administrative staff) which - according to the Government - were tacitly repealed and without effect and to repeal or amend section 55 of Legislative Decree No. 153, concerning the legal status of the University of Chile, and section 35 of Legislative Decree No. 149 regarding the Statutes of the University of Santiago, in order to ensure protection against discrimination on grounds of political opinion, the Committee notes the Government's statement that the Committee's requests have again been transmitted to the Ministry of Education authorities, but that no action has been taken by them. The Committee recalls the Government's previous statement that these texts can only be repealed or amended by a law passed by the National Congress and hopes that the Government will take the necessary measures to repeal explicitly or amend these texts. It asks the Government to include in its next report information on the progress achieved in this respect.

6. The Committee notes the most recent observations of the Workers' Trade Union No. 7 of Codelco Chile, dated February 1993, concerning dismissals of workers on the basis of age and hopes that the Government's comments thereon will be available for its next session.

[The Government is asked to report in detail for the period ending 30 June 1993.]

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. The Committee has taken note of the communication dated 31 May 1991 from the Comando de Exonerados de Chile concerning dismissal from employment on political grounds under the military dictatorship, whereby thousands of workers from various public and private agencies and undertakings were discharged, persecuted, subjected to administrative investigation or accused of offences which they had not committed or of conduct not their own. The Committee has taken note of the detailed information given in the Government's reply dated 15 January 1992 and in particular of its statement to the effect that a draft Act was sent to the National Congress on 9 July 1991 proposing provisional benefits for persons dismissed on political grounds from the public administration, from semi-state agencies and self-governing state undertakings, or from municipalities and for workers from private undertakings in which the public authority intervenes, whose discharge took effect during the period 11 September 1973 to 10 March 1990. The Committee hopes that this draft Act will be adopted in the near future; it asks the Government to supply a copy of the Act once it has been promulgated, together with information on its practical application.

2. The Committee also takes note of the observations supplied by Workers' Trade Union No. 7, División El Teniente, Codalco, Chile, in its letter of 17 February 1992, which was transmitted to the Government by ILO letter dated 6 March 1992. The Committee hopes that the Government will supply its comments on the letter in question so that it may be examined at the Committee's next session.

3. The Committee hopes that the next report will contain information on the following points raised in its previous observation:

(i) With reference to its previous comments, the Committee notes with interest the Government's statement that section 8 of the National Constitution has been repealed by Constitutional Reform Act No. 18825 of 16 August 1989 and that, consequently, persons convicted by the Constitutional Court of committing the acts specified in the above-mentioned section 8 must be acquitted as these acts no longer constitute an offence. By virtue of the above reform, the Constitutional Court resolved to lift the penalties imposed on Mr. Clodomiro Almeyda Medina. The Committee asks the Government to continue to inform it of any further such decisions of the Constitutional Court.

(ii) Decrees relating to universities. In its previous comments, the Committee requested the Government to explicitly repeal certain Decrees (Nos. 112 and 139 of 1973; Nos. 473 and 762 of 1974 and Nos. 1321 and 1412 of 1976) which grant broad discretionary powers to university rectors to terminate the contracts of teaching and administrative staff. The Committee also requested the repeal or amendment of section 55 of Legislative Decree No. 153 respecting the legal status of the University of Chile, and section 35 of Legislative Decree No. 149 respecting the Statutes of the University of Santiago, in order to ensure protection against discrimination on grounds of political opinion. The Committee notes the Government's statement that the Committee's request has been transmitted to the new Ministry of Education authorities which are examining the matter but that the above texts can only be repealed or amended by a law passed by the National Congress. The Committee trusts that the Government will take the necessary measures and hopes that the next report will indicate further progress made in this respect.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

1. Labour Code. The Committee notes with satisfaction Act No. 19.010 establishing rules on the termination of work contracts and stability of employment (Official Gazette, 29 Nov. 1990), which repeals section 157(6) of the Labour Code whereby a labour contract lapses where an offence has been committed under Act No. 12927 of 1958 on state security, as amended by Act No. 18256 of 26 October 1983.

2. Act No. 18662 of 27 October 1987. The Committee also notes with satisfaction that, pursuant to section 1 of Act No. 19048 of 13 February 1991, Act No. 18662 which referred to former section 8 of the Constitution has been repealed.

3. With reference to its previous comments, the Committee notes with interest the Government's statement that section 8 of the National Constitution has been repealed by Constitutional Reform Act No. 18825 of 16 August 1989 and that, consequently, persons convicted by the Constitutional Court of committing the acts specified in above-mentioned section 8 must be acquitted as these acts no longer constitute an offence. By virtue of the above reform, the Constitutional Court resolved to lift the penalties imposed on Mr. Clodomiro Almeyda Medina. The Committee asks the Government to continue to inform it of any further such decisions of the Constitutional Court.

4. Decrees relating to universities. In its previous comments, the Committee requested the Government to explicitly repeal certain Decrees (Nos. 112 and 139 of 1973; Nos. 473 and 762 of 1974 and Nos. 1321 and 1412 of 1976) which grant broad discretionary powers to university rectors to terminate the contracts of teaching and administrative staff. The Committee also requested the repeal or amendment of section 55 of Legislative Decree No. 153 respecting the legal status of the University of Chile, and section 35 of Legislative Decree No. 149 respecting the Statutes of the University of Santiago, in order to ensure protection against discrimination on grounds of political opinion. The Committee notes the Government's statement that the Committee's request has been transmitted to the new Ministry of Education authorities which are examining the matter but that the above texts can only be repealed or amended by a law passed by the National Congress. The Committee trusts that the Government will take the necessary measures and hopes that the next report will indicate further progress made in this respect.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

1. Article 8 of the national Constitution. In its previous observations the Committee requested the Government to provide information on any measure taken or envisaged to amend or repeal article 8 of the Constitution in order to ensure observance of the policy of non-discrimination on grounds of political opinion set forth in the Convention. Under this article any organisations or political movements or parties that, by their aims or by the activities of their followers were intended to propagate certain doctrines, including those advocating a conception of society, the State or law "of a totalitarian character or based on class war" were unconstitutional. Persons who had committed these offences were barred for ten years from access to any public post or position, automatically lost any such employment or office they might hold, and might not during the same period be directors or principals of educational establishments, teachers or trade union leaders, nor could they exercise any function in the mass media relating to the publication or dissemination of opinions or information.

The Committee notes with satisfaction that, by virtue of the constitutional reform, enacted by Act No. 18825 of 16 August 1989, article 8 of the Constitution was repealed. By virtue of the amendments to article 19(15) of the Constitution, under the same Act, it is still possible for parties and organisations to be declared unconstitutional by the Constitutional Court if their objectives or activities do not respect the basic principles of the democratic and constitutional order. However, persons who have participated in activities that have been declared unconstitutional are only disqualified from a limited number of high positions in the Government and in a number of public institutions.

2. Act No. 18662 of 27 October 1987. The Committee also notes the Government's statement that it will be necessary to refer to the courts the question of whether this Act remains in force and is constitutional, since it refers to former article 8 of the Constitution. Information will be supplied to the Committee of Experts on this point in due course. The Committee hopes that the Government will take the necessary measures to clarify the situation and that the next report will indicate the outcome of this re-examination.

3. Labour Code. In its previous comments, the Committee noted that, under section 157(6) of the Labour Code, an employment contract lapses immediately and without entitlement to compensation when the employer terminates it on the grounds that an offence has been committed under Act No. 12927 of 1958 on State security, as amended by Act No. 18256 of 26 October 1983, which defines as offences, inter alia, the unauthorised calling of collective public acts in public places, and incitement to any other kind of public demonstration permitting or facilitating the disturbance of public tranquillity. The Government states once again that the grounds for revoking an employment contract are that an offence that is punishable under the law has been committed, which has a direct bearing on work, and that the above legal provisions never sanction the expression of political opinion. It states that action has not been taken in application of section 157(6) of the Labour Code. The Committee refers to its previous comments on this matter and trusts that in the near future the Government will take the appropriate measures to repeal section 157(6) of the Labour Code.

4. Decrees relating to universities. In its previous observation, the Committee once again requested the Government to explicitly repeal Decrees Nos. 112 and 139 of 1973, Decrees Nos. 473 and 762 of 1974 and Decrees Nos. 1321 and 1412 of 1976, which grant broad discretionary powers to university rectors (whom, in most cases, are directly appointed by the Government) to dismiss teaching and administrative staff. The Government repeats its statement that these Decrees are no longer in force nor applied since the universities in the country, under their own statutes, have independently issued their own rules which have been duly published. It adds, nevertheless, that the Committee's request has been transmitted to the authorities of the Ministry of Education. The Committee therefore trusts that the Government will take the necessary measures to formally repeal the above Decrees so that no ambiguity may persist in this connection.

The Committee had also requested the Government to take the necessary measures to repeal or amend section 55 of Legislative Decree No. 153 (Statute of the University of Chile) and section 35 of Legislative Decree No. 149 (Statute of the University of Santiago de Chile) in order to ensure that, in conformity with the Convention, no one is refused admission to universities and other educational institutions, nor expelled from such establishments, whether as students, or as teaching or administrative staff, for expressing a political opinion. The Committee notes the Government's statement that no one can be expelled from an educational institution on the grounds of their political ideas or of having demonstrated or expressed these ideas. A situation of this type is incompatible with the provisions of the Constitution and the laws in force. The freedom to express opinions is laid down as a constitutional guarantee, and recourse known as a protective appeal may be made to the competent Court of Appeal. This channel of appeal re-establishes the rule of the law and guarantees due protection to the persons concerned. The Committee notes, nevertheless, that under section 55 of Legislative Decree No. 153, teaching staff, students and administrative staff can be expelled from, or refused admission to, the University of Chile if they have been expelled from another higher education institution for having breached the legal order. It also notes that section 35 of Legislative Decree No. 149 provides that persons participating in party political activities with a view to disturbing the public order who have been punished by the competent authority cannot be admitted to the University of Santiago de Chile, even if they have all the necessary qualifications for studying there. The Committee therefore once again requests the Government to take the necessary measures to repeal or amend section 55 of Legislative Decree No. 153 and section 35 of Legislative Decree No. 149 to bring national law and practice into full conformity with the Convention.