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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Chile (Ratification: 1999)

The Committee notes the observations of the World Federation of Trade Unions (WFTU) received on 7 March 2014; the National Confederation of Trade Unions of the Bread and Food Industry Workers (CONAPAN), the National Federation of Unions of Bus and Truck Drivers, and Allied Activities of Chile (FENASICOCH), the Inter-Enterprise Union of Workers of Líder Supermarkets, the Federation of the United Workers’ Unions (AGROSUPER), the Inter-Enterprise Union of Subcontracting Enterprises (SITEC), the Inter-Enterprise Union of Actors of Chile (SIDARTE), the National Inter-Enterprise Union of Film and Audio-visual Professionals and Technicians (SINTECI), the Federation of ENAP Contract Workers of Concón, the Inter-Enterprise Union of Professional Footballers, the Federation of Workers’ Trade Unions of ISS Holding Companies and Subsidiaries, and General Services (FETRASSIS) and the Inter-Enterprise Union of Domestic Workers, received on 22 April 2014; the International Trade Union Confederation (ITUC), received on 1 September 2014 and 31 August 2016; and the General Confederation of Public and Private Sector Workers (CGTP), received on 31 August 2016, on the application of the Convention in law and practice. The Committee requests the Government to send its comments in this regard. The Committee also notes the communication from 53 trade union leaders, received on 1 September 2016, expressing concern at the ruling of the Constitutional Court of 9 May 2016 on the labour reform.

The Committee notes that a complaint under article 26 of the ILO Constitution alleging non-compliance with this and other ILO Conventions by the Republic of Chile, submitted by a Workers’ delegate to the 2016 International Labour Conference, was declared receivable and is pending before the Governing Body.

Articles 1–6 of the Convention. Labour reform. The Committee notes the adoption of Act No. 20.940, modernizing the industrial relations system, which will enter into force on 1 April 2017. The Committee notes the Government’s indication that: (i) consultations were held with a large number of social partners during the process of adoption of the Act; (ii) the previous comments of the Committee and technical support of the Office were taken into consideration; (iii) certain provisions of the Bill by senators and deputies who opposed them were submitted to the Constitutional Court, and the ruling partially upheld their challenge, particularly by eliminating the provisions on the recognition of trade unions for collective bargaining purposes; and (iv) the Government had to make additional amendments to the Bill due to the imbalances introduced through the elimination of the provisions on the recognition of trade unions for collective bargaining purposes.

With regard to requests made to the Government in previous comments to amend or repeal specific provisions of the Labour Code, which were not in conformity with the Convention, the Committee notes with satisfaction that Act No. 20.940:

• -eliminates the general exclusions from collective bargaining set forth in sections 82 and 305(1) of the Labour Code for apprentices and those under contract solely to work on a specific task or activity, or for a specific period. Noting that the regulations respecting collective bargaining for these categories of workers are subject to special conditions, the Committee requests the Government to provide information on their application in practice;
• -repeals the rule contained in section 334(b) of the Labour Code, which provided that two or more unions from different enterprises, an inter-enterprise union or a federation or confederation may submit draft collective labour agreements, provided that in the enterprise concerned an absolute majority of the worker members who are entitled to engage in collective bargaining agree to confer representation on the trade union concerned in an assembly, by secret ballot and in the presence of a public notary;
• -repeals the rule contained in section 320 of the Labour Code, which placed an obligation on employers to notify all workers in the enterprise of the submission of a draft collective agreement so that they can propose draft texts or agree to the draft submitted;
• -repeals the rule contained in section 334bis of the Labour Code, which provided that, for employers, bargaining with the inter-enterprise union shall be voluntary or optional and that, where an employer refuses, the workers who are not members of the inter-enterprise union could submit draft collective agreements. The Committee considered that these provisions did not, in general terms, adequately promote collective bargaining with trade union organizations. The Committee notes the Government’s indication that the labour reform replaced this provision with a rule allowing inter-enterprise trade unions to submit draft collective agreements at the enterprise level on behalf of their members. The Committee also notes the CGTP’s indication that, in accordance with the special collective bargaining system for inter-enterprise unions set out in the new section 364 of the Labour Code, employers retain the right to refuse to negotiate with inter-enterprise unions in small enterprises (of up to 50 workers which, according to the CGTP, accounts for more than 80 per cent of the enterprises in the country) and that, where an employer so refuses, the new section 364 of the Labour Code does not authorize the inter-enterprise union to represent its members. The Committee requests the Government to provide its comments regarding the CGTP’s observations and to report on the application in practice of the new provisions concerning collective bargaining at the enterprise level by inter-enterprise unions.

The Committee also notes with satisfaction the additional measures for the promotion of voluntary collective bargaining introduced through Act No. 20.940, such as the broadening of the right to information (there is a specific section on this in the amended Labour Code which includes, for example, a requirement for employers to provide specific and necessary information on the enterprise for the negotiation), the simplification of the collective bargaining procedure and the broadening of the issues which may be covered by negotiation.

The Committee also notes that the labour reform has not addressed the following issues raised in its previous comments:

• -With regard to the request to amend section 1 of the Labour Code (which provides that the Labour Code does not apply to officials of the National Congress or the judiciary, or to workers in state enterprises or institutions, or those to which the State contributes or in which it holds shares or is represented, provided that such officials or workers are subject by law to special regulations), the Committee notes the Government’s indication that the labour reform has not amended this provision, as the reform only covers the private sector and that the public employees concerned by this provision, together with public employees of the centralized and decentralized administration, are part of the public sector, in respect of whom the State complies with and applies the Labour Relations (Public Service) Convention, 1978 (No. 151). Recalling that, pursuant to Article 6 of the Convention, only public servants engaged in the administration of the State are exempt from the application of the Convention, the Committee requests the Government to provide detailed information on the manner in which public servants and employees who are not engaged in the administration of the State (for example, employees of public enterprises and decentralized entities, public sector teachers and transport sector staff) enjoy the guarantees of the Convention. The Committee also requests the Government to provide, in its next report on Convention No. 151, clarification regarding the application of the guarantees of that Convention to all workers in the public administration.
• -With regard to the request to amend or repeal section 304 of the Labour Code (which does not allow collective bargaining in state enterprises dependent on the Ministry of National Defence or which are connected to the Government through this Ministry and in enterprises in which it is prohibited by special laws, or in public or private enterprises or institutions in which the State has financed 50 per cent or more of the budget in either of the last two calendar years, either directly or through duties or taxes), the Committee notes with regret the Government’s indication that this section has not been amended with respect to enterprises and institutions financed in part by the fiscal budget. In this respect, the Committee is bound to recall that the Convention is compatible with special methods of application for public service workers and reiterates that, in accordance with the terms of Articles 5 and 6 of the Convention, only the armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining. The Committee requests the Government to take the necessary measures to guarantee that the categories of workers referred to previously can participate in collective bargaining, in law and practice.

Anti-union discrimination. The Committee notes that the Committee on Freedom of Association, welcoming the willingness expressed by the Government to revise the regulations determining and penalizing anti-union practices in order to address any shortcomings in the legislation in consultation with the social partners, requested the Government to keep the Committee of Experts informed in this regard (Case No. 3053, 377th Report, paragraph 288). In addition, the Committee notes that in their observations the CGTP and the ITUC denounce recurrent anti-union practices, and the excessively light and non-dissuasive penalties, and the restrictive jurisdictional criteria, under which practices must be of a recurrent nature and of special intent to justify this trade union protection mechanism. The Committee notes that the CGTP also alleges: (i) that the submissions to commence collective bargaining must include the name of every member of the trade union and that this facilitates anti-union discrimination, particularly through dismissal; and (ii) the existence of obstacles and absence of mechanisms and means for reporting and penalizing anti-union practices. The Committee requests the Government to provide its comments in this respect. At the same time, the Committee notes with interest the amendments to Act No. 20.940 extending the scope of protection against anti-union discrimination (for example, the definition of anti-union dismissal, covered by labour protection procedures allowing reinstatement in the enterprise has been broadened, including in cases of termination of the employment relationship (including, as emphasized by the Government, in cases of non-renewal of contracts)) and increasing penalties, subject to adaptations based on the size of the enterprise. Welcoming the provisions adopted to broaden and strengthen protection against anti-union discrimination, the Committee requests the Government, in light of the considerations outlined by the Committee on Freedom of Association and the observations of the social partners, to provide information on the impact in practice of these new provisions, evaluating in particular their effective application and dissuasive effect.

Workers’ organizations and negotiating groups. The Committee notes that, in relation to the Committee’s requests to repeal sections 314bis and 315 of the Labour Code (which provided that groups of workers, even where there are unions, may submit draft collective agreements), the Government indicates that the amendments introduced as part of the Labour Code reform eliminated these provisions and that similar rules were not introduced regulating collective bargaining by negotiating groups, even where there are unions. However, the Constitutional Court ruled that it would be unconstitutional to provide that workers can only negotiate through unions. In this respect, the Committee notes that, while the Bill, taking into consideration its previous comments, set out the recognition of trade union rights to collective bargaining, the decision of the Constitutional Court found the provisions introduced on this subject to be unconstitutional, emphasizing that, in accordance with the Chilean Constitution, collective bargaining is the right of each and every worker, concluding that Conventions Nos 87 and 98 ratified by Chile do not require negotiating groups to be excluded from domestic legislation. The Committee also notes that the Government indicates that only collective bargaining with trade unions is regulated in the Labour Code, that this situation is being assessed by the Government and the social partners, and that it trusts that a satisfactory solution can be reached in accordance with the Workers’ Representatives Convention, 1971 (No. 135). The Committee is bound to recall that, without prejudice to the fact that Chilean legislation recognizes that each and every worker has the right to collective bargaining, this is a collectively exercised right and the Convention, in the same way as other ILO Conventions ratified by Chile, recognizes, in this respect, the preponderant role of trade unions and workers’ organizations over other groups. The concept of workers’ organizations recognized in ILO Conventions is broad (covering a range of organizational forms) and the distinction, therefore, applies in relation to the methods of association which do not fulfil the minimum guarantees and requirements to be considered organizations established with the objective and capacity to further and defend workers’ rights independently and without interference. It is from this perspective that the Convention recognizes, in Article 4, as the parties to collective bargaining employers or their organizations on the one hand, and workers’ organizations on the other, in recognition that the latter offer guarantees of independence that other forms of groupings may lack. The Committee has, therefore, always considered that direct negotiation between the enterprise and groups of workers, without organizing in parallel with workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention, and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of workers’ organizations. In addition, it has noted in practice that the negotiation of terms and conditions of employment and work by groups which do not fulfil the guarantees to be considered workers’ organizations can be used to discourage freedom of association and undermine the workers’ organizations that are able to defend independently the interests of workers through collective bargaining. Noting the initiatives announced by the Government to assess, with the social partners, the situation of negotiating groups, the Committee requests the Government to seek, through social dialogue, solutions which recognize the fundamental role and the prerogatives of representative organizations of workers and their representatives, and which establish mechanisms to prevent the involvement of a negotiating group in collective bargaining, in the absence of a trade union, from undermining the function of workers’ organizations or weakening the exercise of freedom of association.

Level of collective bargaining. The Committee notes that, according to the Government, the reform maintains collective bargaining that is binding (“regulated”) at the enterprise level and that at higher levels collective bargaining remains voluntary. It adds that confederations and federations can submit draft collective agreements and initiate negotiations regulated by the Labour Code. The Committee also notes the observations of the ITUC, the CGTP and the WFTU alleging that the industrial relations system does not adequately promote collective bargaining at the different levels, as it gives priority to bargaining at the enterprise level to the detriment of collective bargaining at higher levels, which do not enjoy the same recognized guarantees. The Committee requests the Government to provide its comments on the observations of the WFTU, CGTP and ITUC in this respect and invites it to engage in social dialogue with a view to agreeing on solutions to encourage the full development and use of collective bargaining procedures at the various levels. The Committee also requests the Government to provide information on the effect of the new industrial relations system established by law on the exercise of collective bargaining, with comparative data on the number of collective agreements concluded by level and sector, and the number of workers covered.