Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee notes the Government’s reply to the comments of the International Trade Union Confederation (ITUC) of 28 August 2007, which referred to matters under examination by the Committee, as well as to the prohibition of the right to strike by agricultural workers during the harvest. The Committee notes the Government’s indication that Chilean labour legislation envisages a semi-regulated procedure under which agricultural workers represented by a trade union negotiate collectively with their employer an instrument known as an “collective agreement” which, once concluded, has the same effect as a collective contract (sections 314bis A and 314bis B). Such bargaining is not of a binding nature, so that it does not give rise to the rights, prerogatives and duties established through regulated collective bargaining, and consequently there is no right to strike. The fact that these workers cannot negotiate a collective agreement or benefit from the right to strike is due to the fact that they perform seasonal work of short duration. In this respect, the Committee recalls that the right to strike is an intrinsic corollary to the right to organize which may only be restricted in the case of essential services (the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in the case of public servants exercising authority in the name of the State. Under these conditions, observing that agricultural workers do not form part of either of these categories, the Committee requests the Government to take the necessary measures to ensure in law and practice that agricultural workers can enjoy the right to strike. The Committee requests the Government to provide information in this respect.

The Committee notes the comments made by the ITUC on 26 August 2009 on the application of the Convention. The Committee also notes the comments sent by the National Inter-Enterprise Union of Airport Workers of Chile and other unions in various sectors, dated 24 March 2009, which refer to legislative matters already raised by the Committee, and particularly to questions relating to the right to strike. The Committee requests the Government to provide its observations in this regard.

The Committee recalls that for several years it has been asking the Government to amend or repeal various legislative provisions, or to take steps to ensure that certain workers are afforded the guarantees laid down in the Convention. Specifically, in its previous observation, the Committee requested the Government to take steps to:

–           repeal section 11 of Act No. 12927 on the internal security of the State, which provides that any interruption or collective suspension, stoppage or strike in public services or services of public utility, or in production, transport or commercial activities which is not in accordance with the law and results in prejudice to the public order or to compulsory legal functions or damage to any vital industries shall constitute an offence and be penalized with imprisonment or relegation;

–           ensure that officials of the judiciary are afforded the guarantees set forth in the Convention;

–           amend article 23 of the Political Constitution, which provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for trade union officials who participate in party political activities;

–           amend sections 372 and 373 of the Labour Code, under which an absolute majority of the workers in the enterprise is required for a decision to strike;

–           amend section 374 of the Labour Code, under which a strike must be carried out within three days of the decision to call it, otherwise the workers in the enterprise concerned shall be deemed to have refrained from going on strike and so accept the employer’s final offer;

–           amend section 379 of the Labour Code, which provides that at any time the group of workers concerned by the negotiations may be called upon to vote, by at least 20 per cent of them, for the purpose of taking a decision, by absolute majority, to censure the negotiating committee, in which case a new committee shall be elected forthwith;

–           amend section 381 of the Labour Code containing a general prohibition on the replacement of striking workers, but which provides for the possibility of such replacement subject to compliance by the employer with certain conditions in the final offer during the process of negotiation, and the requirement to pay a bond of four units of account (UF) for each worker hired as a replacement;

–           amend section 384 of the Labour Code, which provides that strikes may not be called by workers in enterprises which provide public utility services, or services the interruption of which would seriously endanger the health, public supply, the national economy or national security (the third subsection of section 384 provides that, in such cases, if no agreement is reached between the parties to the bargaining, the matter shall be referred to compulsory arbitration). The Committee noted previously that the definition of services in which strikes may be prohibited, as well as the list drawn up by the government authorities, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. In particular, the list includes certain private port terminals and also the Arica–La Paz railway, which cannot be considered as essential services in the strict sense of the term. The Committee also notes Case No. 2649 examined by the Committee on Freedom of Association relating to the exercise of the right to strike by workers in sanitary enterprises (water supply).

–           amend or repeal section 385 of the Labour Code, which provides that, in the event of a strike which by reason of its nature, timing or duration causes a serious risk to health, the supply of goods or services to the population, the national economy or national security, the President of the Republic may order the resumption of work;

–           amend section 254 of the Penal Code, which provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees; and

–           amend section 48 of Act No. 19296 which grants broad powers to the Directorate of Labour for the supervision of the accounts and financial and property transactions of associations.

The Committee observes that the Government reiterates its intention to include in the relevant domestic legislation all of the provisions necessary to bring the legislation rapidly into harmony with the Convention. The Committee hopes that the Government will take all the necessary measures in the near future to amend the legislation with a view to bringing it fully into conformity with the provisions of the Convention. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

Furthermore, in its previous observation, the Committee noted the preparation of a draft revision of the Constitutional Organic Act on Municipalities, No. 18695, and hoped that it would take into account the principle that the prohibition of the right to strike in the public service should be confined to officials exercising authority in the name of the State. The Committee notes the Government’s indication that the draft text is undergoing its first constitutional reading in the Chamber of Deputies, and that the proposal to adopt legislation on this subject has been approved, while the only amendments adopted concern the removal of the prohibition for trade union leaders to take office as deputies or senators. In these conditions, the Committee requests the Government to provide information in its next report on any progress made in relation to this draft text.