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

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

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In its previous comment, the Committee noted serious allegations made by the International Trade Union Confederation (ITUC) and by the Single Central Organization of Workers of Chile (CUT) in 2020, which included the violent repression of the protest against an anti-union reform, as well as the detention of trade union leaders and the death of a trade union leader of artisanal fishers (challenging the official version of suicide as the cause of death). The Committee regrets to note that the Government has sent no comments in this regard, and has likewise provided no comments in relation to the many observations made by the social partners in 2016 and 2019. The Committee again requests the Government to provide its comments without delay.

Articles 2 and 3 of the Convention. Legislative matters. In its previous comment the Committee reiterated its hope that the Government would take the necessary measures as soon as possible to bring the following provisions into conformity with the Convention:

• article 23 of the Political Constitution, which provides that the holding of trade union office is incompatible with active membership of a political party and that the law shall establish penalties for trade union officials who engage in party political activities;
• section 48 of Act No. 19296, which establishes rules on associations of State administration officials and grants broad powers to the Directorate for Labour for the supervision of the accounts and financial assets and property of associations. The Committee notes the Government’s indication that although the section has not been amended, the Directorate for Labour issued several opinions between 2015 and 2022, in which it emphasized that it is not for it to supervise the financial administration of associations, but for the associations themselves to perform that task. The Government stresses that the doctrine of the Directorate of Labour is consistent with the principles of freedom of association and leaves it to organizations to control their own accounts, financial assets and property;
• section 11 of Act No. 12927 on the internal security of the State, which provides that an interruption or strike in certain services may be penalized with imprisonment or banishment, and the amendment of section 254 of the Penal Code, which establishes criminal penalties in the event of the interruption of public services or public utilities or dereliction of duty by public employees. The Committee notes that the Government indicates that these provisions have not been applied. The Committee also recalls that on previous occasions, the Government indicated that no penal sanction should be imposed on a worker for participating peacefully in a strike, which is merely the exercise of an essential right.

The Committee takes due note of the Government’s indications that some provisions have not been applied in practice as written, but emphasizing the importance of legal certainty on these subjects, the Committee hopes that the Government will not delay in taking the necessary measures to bring the provisions mentioned into conformity with the Convention and requests it to report thereon.

Article3. Right of organizations to organize their activities and to formulate their programmes. Exclusion from strike action of enterprises declared to be strategic. Section 362 of the Labour Code, under the heading of the determination of enterprises in which the right to strike may not be exercised, provides that a strike may not be called for workers providing services in corporations or enterprises, irrespective of their nature, purpose or function, which provide services of public utility or the cessation of which would cause serious damage to health, the national economy, the supply of goods to the population or to national security. The Committee observed that this definition of enterprises in which the right to strike cannot be exercised, renewed every two years and approved jointly by various ministries and subject to appeal before the Court of Appeal, potentially covers services which go beyond the definition of essential services in the strict sense of the term (those the interruption of which may endanger the life, personal safety or health of the whole or part of the population). The Committee noted that the concepts of public utility and of damage to the economy are broader than that of essential services, observing that “services of public utility” are already covered by the system of minimum services established in section 359, which is distinct from the concept of essential services in the strict sense of the term. While reiterating that section 362 of the Labour Code should be amended to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee requests the Government to provide information on the application in practice of this section. The Committee notes that the Government provides a copy of the list, published in 2021, of public enterprises the workers of which are not able to exercise the right to strike, under section 362 of the Labour Code. The Government also cites a ruling of the Santiago Court of Appeal from 2017 which upheld a claim lodged by a trade union and ordered the removal of an enterprise from the list, thereby allowing the workers of that enterprise to exercise the right to strike. The Government also indicates that the Office of the Comptroller General of the Republic has reached similar conclusions in its opinions. The Committee takes due note of this information and also observes that it has received no new observations that refer to complaints submitted in relation to the list of enterprises in which workers are excluded from the right to strike. In light of the above, and reiterating once more the need to amend section 362 of the Labour Code to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee requests the Government to continue to provide information on the application in practice of this section, specifying the categories of services provided by the enterprises excluded from the exercise of the right to strike, and the treatment of the complaints submitted in this regard. The Committee also recalls once more that, without calling into question the right to strike of the large majority of workers, a negotiated minimum service may be established for public services of fundamental importance that are not essential services in the strict sense of the term.

Replacement of workers. The Committee noted that although the Labour Code contains a provision prohibiting the replacement of striking workers, as well as sanctions in the event of such a replacement (sections 345, 403 and 407), other provisions could undermine or introduce uncertainty into such prohibition to replace striking workers. The General Confederation of Public and Private Sector Workers (CGTP) previously referred to the possibility envisaged in section 306 of the Labour Code for an enterprise that has subcontracted work or services to another enterprise to carry out directly or through a third party the subcontracted work or services interrupted due to a strike. The Committee requested the Government to provide further information on the above-mentioned sections. The Committee notes that, according to the Government, between January 2019 and June 2023, a total of 272 complaints of strike replacement were lodged with the Directorate for Labour and that these resulted in 268 inspections of enterprises. The Committee also observes, according to the information provided by the Government in relation to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Directorate for Labour maintains a register of convictions for anti-union or unfair practices and publishes a list of offending enterprises and trade union organizations every six months. The Committee notes that, according to this register, between the second half of 2020 and the first quarter of 2023, the fines applied in cases of replacement of striking workers varied from 20 to 120 Monthly Tax Units (approximately equivalent to US$1,400 to US$8,800). The Committee requests the Government to continue to provide information on violations of the law prohibiting replacement of striking workers, the penalties applied in these cases, and on the impact of the hiring of workers under section 306 on striking workers or services interrupted due to a strike.

Exercise of the right to strike beyond the framework of regulated collective bargaining. The Committee noted that, in general terms, the exercise of the right to strike is regulated within the framework of regulated collective bargaining. It also recalled that the Committee on Freedom of Association: (i) given that existing legislation does not permit strike action outside the context of the collective bargaining process, requested the Government, in consultation with workers’ and employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of freedom of association (367th Report, March 2013, Case No. 2814), and (ii) recalling the principle that the occupational and economic interests that workers defend through the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the enterprise which are of direct concern to the workers, requested the Government to take all the necessary measures, including legislative measures if necessary, to uphold this principle (371st Report, March 2014, Case No. 2963). The Committee requested the Government to provide information on the measures taken in this regard. The Committee notes that the Government indicates, with court rulings in support, that it cannot be maintained that the right to strike outside the framework of collective bargaining is prohibited, to the extent that it is an essential right, and as such requires a specific rule for its general limitation, which the national legislation does not provide. While taking note of these indications, the Committee reminds the Government of the need to adopt measures in relation to the Committee on Freedom of Association’s recommendations cited above. The Committee once again requests the Government to report on all measures taken in this regard.

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