REPRESENTATION (article 24) - CHILE - C001, C002, C029, C030, C122 - 1984

1. National Trade Union Co-ordinating Council (CNS) of Chile (CNS)

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Report of the Committee set up to examine the representation presented by the National Trade Union Co-ordinating Council (CNS) of Chile under article 24 of the Constitution alleging non-observance of International Labour Conventions nos. 1, 2, 29, 30 and 122 by Chile

Report of the Committee set up to examine the representation presented by the National Trade Union Co-ordinating Council (CNS) of Chile under article 24 of the Constitution alleging non-observance of International Labour Conventions nos. 1, 2, 29, 30 and 122 by Chile

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Introduction
1. By a letter of May 1983, the National Trade Union Co-ordinating Council of Chile presented a representation (Endnote 1) under article 24 of the Constitution of the ILO alleging the non-observance by the Government of Chile of the Hours of Work (Industry) Convention, 1919 (No. 1), the Unemployment Convention, 1919 (No. 2), the Forced Labour Convention, 1930 (No. 29), the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), and the Employment Policy Convention, 1964 (No. 122). (Endnote 2)
2. The Conventions that are alleged to have been infringed have been ratified and are in force for Chile. (Endnote 3)
3. The provisions of the Constitution of the International Labour Organisation concerning the presentation of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effect of observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980. (Endnote 4)
5. In accordance with articles 1 and 2 of these Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Chile and brought the representation before the Officers of the Governing Body.
6. At its 223rd Session, the Governing Body, on the recommendation of its Officers, decided that the representation was receivable, and set up a Committee to examine it, composed of Mr. Antonio Malintoppi (Government member, Chairman), Mr. A. Verschueren (Employer member) and Mr. John Svenningsen (Worker member). (Endnote 5)
7. The Committee invited the Government of Chile to make a statement on the representation before 31 October 1983.
8. It also invited the National Trade Union Co-ordinating Council of Chile to provide further information before 30 September 1983.
9. On 10 October 1983 further information was received from the National Trade Union Co-ordinating Council of Chile (Endnote 6) and it was immediately transmitted to the Government of Chile for information and possible observations.
10. On 31 October 1983 the statement of the Government was received. The Government replied to the representation and expressed its intention of expanding its information in a personal statement by one of its representatives.
11. The Committee met first on 17 November 1983. It met again on 25 February 1984 to hear a representative of the Government. The Committee held a third meeting on 28 May 1984 and adopted its report. The Chairman, Mr. Malintoppi, was prevented from attending the last meeting, but informed the Office that he approved the report.
12. On 25 February 1984, the Committee received the representative of the Government of Chile, Mr. Guillermo Arthur E., Under-Secretary of Labour. After having made a statement, the representative of the Government replied to questions put to him by the members of the Committee, (Endnote 7) on the understanding that additional information could be sent before 31 March 1984, the date fixed by the Committee. The written version of the said statement was received on 2 March, and the Governent's additional answers to the questions put by the Committee were received on 5 April 1984.
Examination of the representation
13. The representation deals with questions relating to the application of certain international labour Conventions concerning hours of work, employment and forced labour. These questions are examined by the Committee below.
I. Questions relating to hours of work
Hours of Work (Industry) Convention, 1919 (No. 1)
Hours of Work (Commerce and Offices) Convention, 1930 (No. 30)
Allegations
14. The National Trade Union Co-ordinating Council of Chile refers to sections 30 to 49-A of Legislative Decree No. 2.200 of 15 June 1978, as amended by Legislative Decree No. 18.018 of 24 August 1981, which deal with hours of work and are applicable to the establishments covered by the two Conventions. It is alleged in the representation that under sections 34, subsection 1, 39 and 36 of Legislative Decree No. 2.200 workers in Chile can work up to 12 hours a day and that under section 36 workers employed in commerce in the circumstances specified in this section may be compelled to work up to 14 hours a day. It is asserted that the provisions referred to are in open contradiction with Article 2 (Endnote 8) of Convention No. 1 and Articles 3, 4, 5 and 6 (Endnote 9) of Convention No. 30, ratified by Chile.
15. The provisions of Legislative Decree No. 2.200 criticised and reproduced in the representation are as follows:
Section 34, subsection 1
"Normal hours of work shall not exceed forty-eight hours a week."
Section 36
"The employer may extend the normal hours of work of persons employed in commerce up to a maximum of ten a day during periods immediately preceding Christmas, national festivals and other public holidays. In this case any hours in excess of the maximum specified in the first paragraph of section 34, or in excess of the agreed normal working day, whichever is the shorter, shall be paid as overtime."
Section 39
"The maximum weekly hours of work specified in section 34 shall not be distributed over more than six days, none of which shall exceed twelve hours, without prejudice to the provision of section 36."
Observations of the Government
16. The Government maintains that the legislation is in conformity with Conventions Nos. 1 and 30.
17. The Government states that section 34 of Legislative Decree No. 2.200 establishes at 48 hours the length of the normal working week and, read together with section 39 of this legislative decree, complies with the provisions of Article 2 of Convention No. 1 and Article 3 of Convention No. 30, under which hours of work shall not exceed eight in the day and 48 in the week. In the particular case of commerce, eight hours a day, from Monday to Saturday, are normally worked. Section 39 does not authorise a working day of up to 12 hours, but endeavours to prevent the distribution of the working week of 48 hours over less than six days from resulting in days of more than 12 hours. The Government indicates that overtime hours are included within this limit of 12 hours. The possibility of distributing the weekly hours over fewer than six days has been established for the benefit of the worker, who may thus enjoy more days of rest. The Government concludes by saying that the legislation respects both the weekly limit of 48 hours and the daily limit of eight hours, the latter being subject to the power of discretion of the parties to distribute the weekly hours of work.
18. With regard to the observance of Articles 4, 5 and 6 of Convention No. 30, the Government states that exceptionally, in accordance with section 36 of Legislative Decree No. 2.200, the employer may extend the normal hours of work of workers in commerce by up to two hours a day, which would make a total of ten, during periods immediately preceding certain holidays and that the extra hours, in so far as they exceed the legal maximum of 48 or the agreed hours of work if these are shorter, must be paid as overtime, which is in harmony with the provisions of Articles 4, 5 and 6 of the Convention prescribing ten hours as the maximum working day. The Government adds that, in the unlikely case of the week of 48 hours distributed over fewer than six working days, a case in which daily hours may reach 12, thus exceeding the maximum limit of ten laid down by the Convention, the situation is in conformity with Article 7, paragraph 2(d), of Convention No. 30. (Endnote 10) The provisions of section 36, are an indirect incentive to the engagement of new staff. The Government categorically denies that the working hours for workers in commerce can reach 14.
19. In his statement before the Committee, the representative of the Government indicated, nevertheless, that in order to avoid interpretations of the legislation which could run counter to the Conventions, a modification of various provisions had been proposed within the process of amending the labour law. The Government provided a draft amendment to Legislative Decree No. 2.200.
Conclusions of the Committee
20. The representation deals with: (a) the distribution of weekly hours of work in industrial and commercial undertakings; and (b) overtime of workers employed in commerce.
21. With regard to the first question, section 34 of Legislative Decree No. 2.200 fixes the maximum limit of the working week at 48 hours and section 39 provides that these hours shall not be distributed over more than six days and shall not exceed 12 in the day. The Committee is therefore bound to conclude that the possibility of working days of up to 12 hours, introduced by this section, goes beyond the provisions of both Conventions in cases of uneven distribution of the 48 hours in the week: Convention No. 1 (Article 2(b)) provides that in certain circumstances, the daily limit of eight hours may be exceeded by only one additional hour making a total of nine hours; and Convention No. 30 (Article 4) provides that the hours of work in any day shall not exceed ten hours.
22. The Committee notes with interest the draft amendment to section 39 (Endnote 11) which limits the reduction of a working week to five days and a working day to ten hours within a limit of 48 hours in the week. This would bring this section into harmony with Article 4 of Convention No. 30. There would, however, remain an incompatibility with Article 2(b) of Convention No. 1. The Committee considers that, together with the adoption of the proposed amendment, other provisions should be adopted to ensure that in the event of an uneven division of hours in the week, the normal working day in industry would not exceed nine hours, in conformity with the above-mentioned provisions of Convention No. 1.
23. As to the question of overtime of workers employed in commerce, the Committee observes that section 36 of Legislative Decree No. 2.200, under which their hours of work may be extended by two hours per day, and the forty-eight hours per week may be exceeded, goes beyond the limits and conditions for an uneven distribution provided for in Article 4 (read together with Article 3) of Convention No. 30, as mentioned above. It further observes that the circumstances in which section 36 of the Legislative Decree permits the extension of the working day (periods immediately preceding certain holidays) correspond neither to the circumstances contemplated in Article 5 (the making up of hours lost through a general interruption of work due to local holidays, accidents or force majeure) nor to those of Article 6 of the Convention (calculation of average hours of work over a period longer than a week). The Committee considers it necessary to point out further that Article 5 lays down certain conditions and limits for the making up of lost hours, in particular that the extension of hours of work shall not exceed one hour in the day.
24. The Government also refers to Article 7, paragraph 2(d), of Convention No. 30 which it considers applicable in relation to the circumstances provided for in section 36 of Legislative Decree No. 2.200, especially cases in which the daily extension gives rise to working days of 12 hours. The Committee observes that the legislation does not lay down the maximum number of these additional hours permitted in the year or the duration of the periods immediately preceding holidays that would enable such maximum to be established and that it does not therefore limit additional hours as required by Article 7, paragraph 3 of the Convention, in respect of temporary exceptions to normal hours of work.
25. The Committee notes with interest the draft amendment of section 36 (new paragraph), (Endnote 12) which is intended to declare inapplicable an agreement for overtime work when the employer has made use of the power granted by this section. It must nevertheless be noted that the present text of section 36, which would be retained as the first paragraph of that section, explicitly authorises the extension of the regular working hours established in section 34, mandating that the hours in excess of 48 hours per week be paid as overtime hours.
26. In this regard, the Committee therefore considers that section 36 of Legislative Decree No. 2.200 should be amended so as to authorise overtime of workers in commerce only in the cases laid down in it, by means of regulations issued after consultation with the workers' and employers' organisations, which should determine the number of additional hours of work (Endnote 13) that may be allowed in the day and in the year, in conformity with Article 7, paragraph 3, and Article 8 of Convention No. 30. (Endnote 14)
II. Questions relating to employment
1. Unemployment Convention, 1919 (No. 2)
Allegations
27. The representation maintains that at the present time there are neither under the laws nor in practice any committees with workers' representatives, such as those provided for by Article 2 of the Convention, that may be consulted on matters concerning the carrying on of free public employment agencies.
Observations of the Government
28. In its reply the Government states that in Chile the free public employment agencies referred to in the Convention are the Municipal Placement Offices, set up by Legislative Decree No. 1.446 of 1979, which function regularly in every commune of the country. Furthermore, the national authorities are in permament consultation with the leaders of the employers' and workers' bodies in connection with various labour matters including those relating to employment. The Government asserts that it has been understood that the consultations should be made in that way, since during the whole time the Convention has been in force, the committees provided for in the Convention had not been specially constituted.
29. In his statement to the Committee, the representative of the Government stated that the nature of the infringement allegedly committed could not be inferred clearly from the tenor of the representation. He further stated that Chile had met the basic obligation of the Convention, to establish public non-fee-charging employment agencies under the supervision of a central authority, and that the Convention established principles later developed by other Conventions which Chile has observed in spite of not having ratified them. In addition, the representative of the Government provided a copy of draft amendments to Legislative Decree No. 1.446, to approve rules for training and employment, and pointed out that in these amendments, the obligation to consult with employers and workers regarding the operation of the employment offices referred to above had been provided for, in order to ensure full observance of the Convention. (Endnote 15)
Conclusions of the Committee
30. The Committee observes that, according to the statement of the Government itself, there are no committees including representatives of employers and of workers that must be consulted on matters concerning the carrying on of free public employment agencies.
31. The Committee therefore takes note with interest of the draft amendment of Legislative Decree No. 1.446, first and only section, paragraph 16. It must be recalled that the Convention expressly requires the creation of committees composed of representatives of workers and of employers which shall be consulted on all matters regarding the functioning of non-fee-charging public employment agencies (Article 2). The Committee considers, therefore, that appropriate measures to institute such committees should be taken, as required by Article 2 of the Convention and as indicated by the Committee of Experts on the Application of Conventions and Recommendations in its comments for several years.
2. Employment Policy Convention, 1964 (No. 122)
Allegations
32. It is stated in the representation that the high rate of unemployment existing in Chile in recent years, which is higher than that prevailing before the Government established in 1973 and before the implementation of its neo-liberal economic model, leads to the conclusion that the Government in its policies has not taken as a major goal the promotion of full, productive and freely chosen employment with a view to meeting manpower requirements and overcoming unemployment and underemployment and that the policy in force has made the situation worse in this respect and been prejudicial to the goals and methods of Convention No. 122. The representation refers in particular to the economic situation, percentages of unemployment, the Minimum Employment Programme (PEM) and the Employment Programme for Heads of Household (POJH).
33. According to the supplementary documentation supplied by the National Trade Union Co-ordinating Council of Chile, the endeavour since 1973 has been to put into practice an economic model centred on the free play of supply and demand, where it is the market that determines the use made of productive resources, including human labour, and the opening of the economy to foreign markets should enable national industry to adjust itself to international competition. In this model the determining role is that of the private undertaking and special facilities are granted to encourage investment by foreign private undertakings. On the other hand, the State's role as promoter of economic development and its action on income redistribution would be reduced so as to devote itself to supervising the various markets, to assistance in situations of extreme poverty and to arbitrating in social conflicts. The establishment of this model had had an obviously negative effect on employment and on the level of workers' pay which were also affected by certain legal provisions, (Endnote 16) as well as on the level of social expenditure - on health, education, housing, labour and other services - per head. (Endnote 17)
34. The representation and the additional information contain the following figures concerning the annual percentage of the unemployed in Chile since 1960:
(1) (2) (1 + 2) Percentage of Percentage enrolled in Percentage of
unemployed employment programmes unemployed
(official) (real)
1960-69 6.5 - 6.5
1970 5.7 - 5.7
1971 3.8 - 3.8
1972 3.1 - 3.1
1973 4.8 - 4.8
1974 9.2 - 9.2
1975 14.5 2.3 16.8
1976 12.7 5.0 17.7
1977 11.8 5.9 17.7
1978 14.1 4.2 18.3
1979 13.6 3.9 17.5
1980 10.4 5.2 15.6
1981 11.2 4.9 16.1
1982 19.4 11.5 30.9
(Oct.-Dec.)
1983 17.8 14.2 32.0
(May-July)
According to this table, (Endnote 18) from 1960 to 1974, the "official" percentage of unemployment (or "open unemployment") coincides with the "real" percentage of unemployment, reaching in 1974 the highest figure of the period, namely 9.2 per cent. From 1975 on, the "real" percentage of unemployment includes persons registered with the government employment programmes (Minimum Employment Programme and Employment Programme for Heads of Household). It is also noted in the information provided that a high percentage of the unemployed spend more than six months without finding a new job, and even in Santiago, where the percentage of unemployment is considerably lower than in the rest of the country, 50.8 per cent of the unemployed were in this situation during the period September to December 1982 and 42.4 per cent during the quarter January to March 1983. These figures do not include "discouraged" workers, that is to say, those who no longer look for work.
35. The representation maintains that the Minimum Employment Programme (PEM) and the Employment Programme for Heads of Household (POJH) do not promote full, productive and freely chosen employment but, on the contrary, constitute disguised unemployment, since they are not included in the official Government unemployment indices, or constitute underemployment in the majority of both cases. The representation says that the PEM was set up by Legislative Decree No. 603 of 10 August 1974 (Endnote 19) for workers receiving unemployment benefits who would carry out work assigned to them by the municipalities and other authorities, not exceeding 15 hours in the week, for remuneration amounting to one-third of the minimum income. This programme, which was to be of a temporary nature, had now been in operation for almost nine years, was governed by by-laws of the Government Home Administration and had become a vast programme (Endnote 20) for carrying out all kinds of productive work, (Endnote 21) with eight hours of work per day for remuneration of 2,000 pesos (US$26) a month, (Endnote 22) without bonuses in kind as there were at the beginning and without social security or accident insurance. In October 1982 another plan similar to the PEM was established, namely the POJH, (Endnote 23) the only real difference being that its members receive better monthly pay (4,000 pesos for labourers, 8,000 for foremen, 15,000 for technicians and 30,000 for professionals), though they are also administered by the municipalities and work 8 hours a day on productive work without social security. The activities of the POJH include the construction and maintenance of roads and streets, of sewers and embankments, water supplies, public lighting and sports installations; the repairing of schools and hospitals, the creation of parks and green areas, the building of workshops and the maintenance of a prison, according to press information communicated by the organisation making the representation. (Endnote 24)
Observations by the Government
36. In his statement before to the Committee, the representative of the Government asserted that while the Convention contains concrete obligations, it should not be used to question the economic policy of the Government. He recalled that the Convention is a promotional instrument allowing a great degree of flexibility to adjust policies promoting productive and freely chosen employment according to the conditions of each country, and to determine, in the exercise of its discretion, the strategy of development on condition that the provisions of the Employment Policy Convention (No. 122) and Recommendation (No. 122), 1964, be observed.
37. The Government states that Chile has adopted an economic and social development strategy similar to those put into practice by the countries that have reached the highest standards of progress during the present century, a strategy based on the principle that the role of the State is secondary and that resources are distributed through the market mechanism. With the predominant role in the national economy attributed to the private sector and the provisions that artificially raise the cost of employing human resources eliminated, the foundations have been so laid that when the above-mentioned principles are put into practice the levels of employment are determined by the rising potential growth of the economy. Accordingly, during the years 1976-80, when the international economy was working in comparatively normal conditions, 100,000 new jobs a year were created on an average, (Endnote 25) the growth of the economy reached more than twice the rate of growth observed between 1930 and 1970 and the rate of growth of gross national product per head more than quadrupled during the same period. About half way through 1981, as a result of the international recession, a fall occurred in prices of Chilean export products and there was a sharp reduction in the flow of international credits. It was this that caused a loss of competitivity in national undertakings, which in turn led to a fall in levels of employment. In answer to a question put by the Committee, the Government representative stated that the number of employees in the public sector, not including the personnel in the police and the armed forces, went from 351,363 in 1974 to approximately 202, 156 in 1983, owing to the need to control inflation, which measured 508.1 per cent in 1973 and which today is at an annual figure of close to 20 per cent.
38. The representative of the Government stated that the development strategy chosen did not and does not mean that the State would not have a presence in the solution of major problems, including unemployment, which the Government attributed mainly to the international recession, and which has been repeatedly tackled by the authorities with all available means. A slight budgetary deficit has been created for the year 1983 and consideration is being given to the possibility of creating a deficit of 5 per cent of gross national product for the financial year 1984, as a way of increasing expenditure and further accelerating national economic recovery. The foreign exchange policy has been modified from a policy of fixed exchange to one of variable exchange, in which the rate is determined by world inflation, so that the terms of trade of the country may not deteriorate. Customs policy has been modified, tariffs being raised from 10 per cent to 20 per cent, with a view to improving the competitiveness of national undertakings, and, in order to protect them from unfair foreign competition, supplementary duties are imposed where the existence of dumping or subsidised foreign products has been established. Furthermore, national undertakings are allowed to convert 30 per cent of what they owe into loans with advantageous due dates and rates of interest, and the Central Bank of Chile, with a view to encouraging the recruitment of labour, has started a new class of credit at a rate of interest of 5 per cent per year to provide for the financing of 30 per cent of taxable pay up to 3.5 million pesos a month and 10 per cent of pay in excess of this figure. Lastly, a moderate increase in the amount of money in circulation is being considered. The Government states that these measures will lead to a slow but steady recovery among national undertakings, which, added to the recovery that can be detected in the world economy, points to an improvement in levels of employment. It observes that, in any case, the rate of unemployment has been falling slowly during the year 1983, to 14.6 per cent in January 1984, and has been expected to fall to 12 per cent towards the end of this year, based on the estimate that in 1984 the economy would grow from between 4.5 per cent to 5.5 per cent. The Government explained that these official unemployment figures do not include the workers of the PEM and the POJH, even when it is considered that the work they perform is unproductive, since they do not form part of the workforce. (Endnote 26)
39. The representative of the Government maintained that steps had been taken to give effect to the obligations of the Convention. The measures mentioned earlier lie within the ambit of Article 2 of this Convention. In addition to these measures, fiscal and administrative measures have been taken to permit the State to participate in the creation of new jobs to a significant degree. Among these measures he cited the subsidy for additional contracting of labour, which has permitted the hiring of 109,000 workers, 3 per cent of the labour force; the increase in real terms in the budget for the sectors of housing, public works and state undertakings, of 14 per cent, 17 per cent and 40 per cent respectively; the decision to employ a larger number of personnel in works financed by the fiscal budget; a greater consideration in inviting tenders for public projects to the use of labour and the execution, through the municipalities, of labour-intensive projects such as irrigation, cleaning and drainage of canals, etc. In addition, in conformity with Articles 1 and 3 of the Convention, Supreme Decree No. 4 of 9 January 1984 (Official Gazette No. 31.775 of 19 January 1984), a copy of which was provided, declares that it is the goal of the State to promote full employment which is productive and freely chosen as well as to adopt measures designed to avoid unemployment. The decree creates the National Employment Commission, of interministerial composition, chaired by the Minister of the Interior. This Commission is an advisory organ to the President of the Republic, charged with studying, co-ordinating and proposing measures designed to create or promote job opportunities, rationalising the granting of unemployment benefits, and aiding persons who lack resources owing to the loss or absence of employment (section 1). This Commission is to have a National Secretariat, one of whose functions shall be to consult with employers and workers in relation to matters of employment and to gather the suggestions and concerns which they formulate in this respect (sections 5 and 6). Regional employment commissions, with their respective secretariats, are also to be created. The representative of the Government said, moreover, that in accordance with the requirements of Article 1, paragraph 2(c) of the Convention concerning access to vocational training, the Government created, by Legislative Decree No. 1.446 of 1976, a system of training by undertakings and another for the sectors of levels 1, 2 and 3 of extreme poverty, both under the responsibility of the National Service of Training and Employment, whose actions have, at the same time, been directed towards avoiding the creation of unemployment. Finally, the representative of the Government stated (with regard to the fact that in spite of the efforts made, there continued to be persons who were unemployed) that the Government was prepared to create a social "net" including, among others, the following programmes: unemployment benefits, training benefits, breakfasts and lunches for school children, a national supplementary food programme, family benefits for persons of limited resources and assistance benefits for the extremely poor. He concluded by saying that the private sector will generate jobs through more economic growth and that the public sector will do so basically through an increase in public spending and that the State would continue directly aiding, by way of the social "net", those who are most deprived.
40. With regard to the Minimum Employment Programme and the Employment Programme for Heads of Household, the Government states that they are intended to absorb unemployment rather than to promote employment, the purpose being to alleviate the situation of unemployed persons. They are unemployment assistance. Furthermore, these programmes are of a temporary nature, though they are kept in existence in the hope of a satisfactory improvement in an employment situation that is affected by the world economic recession. The Government also states that the PEM comes broadly under the Ministry of the Interior, being implemented by the municipal offices subject to the control of the regional administrations. Enrolment is absolutely voluntary and those who do enrol, apart from receiving the amount of 2,000 pesos a month, are entitled not only to training grants from the National Training and Employment Service, which in 1982 provided a total of 18,600 vocational training grants under its General Plan and the Minimum Employment Programme, but also to issues of food. Persons coming under either programme carry out work of direct benefit to the community. Accordingly, under the Minimum Employment Programme, among the projects which have used the largest number of participants are emergency works, gardens, social action and community action; similarly, in the Employment Programme for Heads of Household the works also call for a high level of manpower.
41. In his statement and in reply to the Committee's questions concerning official employment programmes, the representative of the Government made the following points:
1. The majority of persons who participate in the PEM do not form part of the labour force; they find the programme to their liking and, being satisfied with it, do not seek other types of employment. The Government bases these conclusions on the results of a study of the PEM made in June 1982 by the Economics Department at the University of Chile, mentioned also in the documents provided by the complainant organisation. According to the indications provided by the Government, 16.8 per cent of persons enrolled in the programme were at the time ill; 6.2 per cent were disabled; 3.3 per cent were above 65, making a total of 26.3 per cent of persons who obviously were not part of the labour force; in addition, 47 per cent of the beneficiaries, mainly women, had not worked beforehand.
2. Days of work are required in the PEM and the POJH more than anything else as a method of supervision, in order for the Government to make sure that the beneficiaries are in fact unemployed. The situation of beneficiaries of unemployment benefits is different; in addition to being unemployed, they must have paid a certain number of contributions ("imposiciones"), but they are not required to perform any service in exchange for receiving the benefits.
3. Eighty to 85 per cent of the resources of these programmes must be used for the payment of labour and only the remainder may be spent on materials and tools. For this reason, productivity is very low and the work is very easy to perform. Moreover, the people enrolled in these programmes cannot be assigned to the regular work of an organisation, institution, service or entity, whether in the private or the public sector, in accordance with the text of government circular No. K-22/80 of 13 March 1980, issued by the Ministry of the Interior.
4. Among the activities of the PEM are the following: clearance of slums, maintenance and cleaning of streets, roads, bridges, passageways, homes for the aged, nutrition centres, medical posts and open spaces; environmental hygiene and sanitation in populated areas; maintenance of green areas and beautification of public squares and promenades. More than 90 per cent of those involved sweep streets, perform support work in hospitals, etc.
5. Among the types of work done by the POJH are the following: fixing paths, sidewalks and kerbs; maintenance and improvement of streets, passageways, sewers, drinking water systems, embankments and canals; and maintenance of public places, community centres, sports and recreation facilities and green areas.
6. The complainant organisation included among the works of the PEM some of much greater importance which were in fact executed by private firms, financed with surplus funds allotted to the PEM, such as the construction of roads opening up the Continental Zone of Chiloí and Aysín, the clearance of marginal settlements and the construction of housing and community facilities, the construction of nutrition centres to be serviced by the National Corporation for Child Nutrition (CONIN), the elaboration of specific projects for construction of open spaces, bridges, schools, roads, rural posts and urban developments. The Government added that of the resources allotted to the employment programmes, among which are found the PEM and the POJH, a part was assigned to the development of highly labour-intensive projects drawn up by public institutions and handed over through public bidding to the private sector for execution. The remuneration of the workers is fixed by the bid awarded, in accordance with general labour legislation.
7. In addition to the remuneration from the respective programme, which may legally be added to unemployment benefit, (Endnote 27) persons enrolled in the PEM or the POJH receive health benefits, social security, food and training (Endnote 28) and in general, the benefits of the social "net" of the State, which a person does not lose even though he withdraws from the PEM or the POJH.
8. The PEM and the POJH are programmes of unemployment assistance. Since trade union rights belong only to workers who have an employment relationship with an employer, the beneficiaries of these programmes cannot organise in unions.
42. The Government concludes by asserting that the accusation of failure to comply with Convention No. 122 is based on no valid argument, since, firstly, the PEM and the POJH have not been set up as programmes to promote employment but as a means of absorbing unemployment and, secondly, the Government has carried out extremely important structural changes, whose clear and basic purpose is the promotion of employment, among which may be cited the establishment of the National Employment Commission.
Conclusions of the Committee
43. The principal matters raised by the representation in relation to Convention No. 122 are the following: (a) that the economic policy of the Government has had a negative effect on employment, and so conflicts with the aims of the Convention; and (b) that the Minimum Employment Programme and the Employment Programme for Heads of Household do not promote full, productive and freely chosen employment, but rather constitute disguised unemployment or underemployment in most cases.
44. The principal arguments contained in the reply of the Government are the following: (a) that the Convention is of a promotional nature and, provided its obligations are met, it cannot be used to question the economic strategy of the Government; (b) that the economic policy of the Government gives a leading role to the private sector without renouncing the State's responsibilities in the area of employment; that the policy generated 98,000 jobs per year on an average during the period 1976-80; that the present unemployment problems are mainly due to the international recession and the Government has taken measures to deal with them and intends to take others; (c) lastly, that the PEM and the POJH are not programmes for the creation of employment but rather assistance programmes for absorbing unemployment.
45. The Committee recalls that the Convention imposes the obligation to formulate and pursue a policy designed to promote full employment in the conditions that it lays down (Article 1); the obligation to decide on and keep under review the measures to be adopted by the member State for attaining the objectives of the Convention and to take such steps as may be needed for the application of these measures (Article 2); and the obligation to carry out specified consultations with a view to applying the Convention (Article 3).
46. The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations, in its regular supervision of compliance with the obligations arising out of Convention No. 122, has been making comments for some years on the employment situation and employment policy in Chile. The Conference Committee on the Application of Conventions and Recommendations examined the question most recently in 1981 and 1983. In fact, the information reproduced in paragraphs 38 and 39 is essentially the information already communicated in reply to the comments of the Committee of Experts.
47. The Committee of Experts called attention in its observations of 1981 and 1983 to the following points: (a) the percentage of unemployment continues to be very high; (b) the employment aims of the Government are expressed in very general terms; although fully aware of the effects of the international recession on the employment situation, the Committee of Experts considers that it is not clear how far the Government is pursuing and keeping under review a firm policy adapted to national conditions to promote full, productive and freely chosen employment, in accordance with the Convention and (c) with specific reference to the PEM, the Committee of Experts examined the situation in 1981 and reached the conclusion that persons enrolled under this Programme worked full time for less than half the minimum wage and benefited from neither the social security scheme nor paid leave; the Committee of Experts took the view that these workers could not be considered to be enjoying productive and freely chosen employment in accordance with the Convention.
48. In 1981 and 1983 at the Conference Committee on the Application of Conventions and Recommendations, the Employers' and Workers' members declared that the Minimum Employment Programme did not provide productive and freely chosen employment within the meaning of the Convention. In 1983 they maintained that the employment policy of the Government had produced no improvement in the situation.
49. In the light of the above considerations and with regard to employment policy in general, the present Committee is of the opinion that the percentage of unemployment in Chile remains very high, whatever source of statistics is taken as reference; (Endnote 29) and there is not sufficient information on the ways and means of determining and reaching the goals set by the Government. The Committee therefore shares the opinion expressed by the Committee of Experts that it is difficult to see how far the Government is pursuing and keeping under review a policy to promote full, productive and freely chosen employment, in accordance with the Convention. It is not for this Committee to express a view on the decision of the Government respecting the role assigned to the private sector in the national economy. It must only point out that the main responsibility for putting into practice an employment policy complying with the provisions of Convention No. 122 lies with the Government under the terms of the Convention.
50. In that connection, the Committee notes with interest Decree No. 4 of 4 January 1984 by virtue of which the principles of the Convention have been adopted and the National Employment Commission has been established, whose National Secretariat will be responsible for consulting employers and workers as to their suggestions and concerns on matters of employment. The Committee hopes that this advisory body will be an efficient organ for the formulation of an employment policy, for reviewing the existing measures and for consultation with occupational organisations in accordance with the Convention, and that the Government will be able to supply information in the near future on the measures adopted on the proposal of the National Employment Commission and on their results.
51. The Committee also notes with interest the budgetary and administrative measures announced by the Government representative and designed to increase expenditures to create jobs and to increase the number of persons employed in activities financed by budgetary means as well as to carry out projects requiring intensive use of manpower. The Committee hopes that the Government will be able to adopt very shortly the measures to give effect in practice to these arrangements.
52. With regard to the Minimum Employment Programme, the Committee refers to the comments of the Committee of Experts. It observes, further, that in the information provided by the Government following the observation made by the Committee of Experts in 1983 there are elements that do not appear to be in full agreement with the previous statement of the Government or which are not sufficiently clear.
53. With reference to the conditions of work and kinds of activities which are carried out under those programmes, the Committee does not have at its disposal information which could elucidate all the aspects involved. In accordance with the information communicated in previous years to the ILO and that supplied in connection with the representation, the Committee understands that, in general, persons enrolled in the PEM and the POJH are working full time. On the other hand, according to the information supplied by the Government following the presentation, the majority of the workers enrolled do not go to work or are on reduced working hours. Moreover, the Government indicates that workers under the PEM and the POJH do not carry out any work pertaining to the normal tasks of local authorities. The Committee notes in this regard that under those programmes, according to information supplied by the Government, different tasks of variable productivity are being performed which form part of normal tasks of public hospitals, public works, urban sanitation services, etc. They include, for example, maintenance and cleaning of the homes for elderly persons, nutrition centres, medical posts, outdoor centres; environmental hygiene and sanitation; the construction, improvement and cleaning of roads and streets, sewage systems, ditches; installations of drinking water and public lighting, schools, hospitals, parks and green areas.
54. As regards the value of the works carried out which, according to the allegations of the claimant organisation, is considerable, the representative of the Government asserts that some works of great importance included in the PEM were actually financed with the surplus funds of the PEM but were carried out by private undertakings using their own workers who were paid normal wages. It would thus appear that in practice the use of resources allocated to these programmes does not correspond entirely to the purpose for which they were set up. These explanations add a new element to the situation if one takes into account the fact that although the PEM has been considerably increased, it has been, nevertheless, complemented by the POJH and together they employ 13.6 per cent of the labour force (December 1983) according to the figures communicated by the Government.
55. The Government has stated on many occasions that the PEM, as the POJH, is not a programme of employment but an assistance programme for absorbing unemployment. In reply to the comments of the Committee of Experts and in statements to the present Committee, the Government has stated that the majority of persons enrolled in the PEM do not form part of the labour force. It has also stated that since the persons enrolled in this programme are considered not to be in an employment relationship, they do not have the right to organise. If this is so, the Committee does not see how the PEM can be considered as a programme for absorbing unemployment. On the other hand, in its reply to the Conference Committee in 1983 the Government stated that through the Minimum Employment Programme "projects of great economic and social importance have been established in all the communities in the country" and that Legislative Decree No. 603 of 1974 (which set up the Minimum Employment Programme) "... provided a fundamental benefit: the right to work for each unemployed person, which is named in law as 'guaranteed minimum work'." This appears to be confirmed by the statement made by the Government in reply to comments by the Committee of Experts that there are sectors in remote poverty-stricken zones which are almost completely integrated within the PEM subject to the seasonal work requirements of their lands. From this point of view, the PEM cannot be considered as not being an employment programme.
56. In the light of the preceding considerations, for the reasons already stated by the Committee of Experts and in view of the information supplied by the Government on the nature of work carried out (important works actually carried out by private undertakings with the PEM's funds), the Committee considers that the PEM does not provide productive and freely chosen employment within the meaning of the Convention. The Committee also considers that the PEM is not a programme of unemployment assistance, if one takes into account, on one hand, the percentage of persons (about 46 per cent) not constituting, according to the Government, part of the workforce and, on the other hand, the availability for work of the persons enrolled in these programmes. Finally, the Committee is of the opinion that this conclusion also holds good for the Employment Programme for Heads of Household, under which the workers are in a similar situation although the wages are higher than those of the Minimum Employment Programme.
57. The Committee therefore recommends:
(1) that in line with the comments of the ILO supervisory bodies and the recent measures taken by the Government, especially the adoption of Decree No. 4 of 1984 by virtue of which the National Employment Commission has been established, the Government should declare and pursue an employment policy in conformity with the Convention and taking into account the high levels of unemployment still to be found in Chile;
(2) that this policy should be applied to the whole population including, in the first place, persons taking part in the Minimum Employment Programme and the Employment Programme for Heads of Household;
(3) that, in the reports that the Government has to present under article 22 of the Constitution of the ILO, detailed information should be supplied on the measures adopted to declare and pursue such an employment policy, as declared, on the results obtained, and on those unclear aspects which have not been elucidated, with a view to enabling the Committee of Experts on the Application of Conventions and Recommendations to continue to examine this question in connection with the application of the Convention. In its reports the Government should accordingly provide information on (a) the National Employment Commission, its activity, the manner in which the representatives of employers and workers are being consulted, the measures proposed and studies carried out; (b) the results achieved through the application of the budgetary and administrative measures announced by the Government; (c) the number and percentage of persons enrolled in the PEM and the POJH who work a full day (eight or more hours), or a reduced day (with indication of the number of hours); (d) the activities carried out in the last three years by the Minimum Employment Programme; by private enterprises with the surpluses of the above-mentioned programme (amount of said activities, value as a percentage in relation to the total budget of the minimum Employment Programme); and by the Employment Programme for Heads of Household (list of works, their value and numbers employed on each of them); (e) the present situation of the PEM and the POJH; the Government should also provide the ILO with a copy of circular No. K-22/80 of 13 March 1980 of the Ministry of the Interior, and of any other important provisions concerning conditions of work in the official employment programmes.
III. Questions concerning forced or compulsory labour
Forced Labour Convention, 1930 (No. 29)
Allegations
58. The National Trade Union Co-ordinating Council of Chile asserts that the policy being pursued has made the employment situation worse and has violated the spirit of the provisions of Convention No. 29. It refers to the high unemployment figures and to Act No. 18.206 of 22 January 1983, which establishes a subsidy of 3,000 pesos a month payable to employers for each new worker engaged from among those receiving unemployment benefits or enrolled in one of the programmes for the absorption of unemployment run by the municipalities. The organisation concerned maintains that these circumstances restrict the will of persons registering under the Minimum Employment Programme or the Employment Programme for Heads of Household, who, rather than offer their services, are compelled to work under one of these programmes.
Observations of the Government
59. The Government denies these allegations and repeats that the Minimum Employment Programme and the Employment Programme for Heads of Household are intended to help the unemployed and were set up as means of palliating the effects of unemployment and that application to register under them is absolutely voluntary. Furthermore, Act No. 18.206, in force between January and June 1983, imposes no obligation to belong to these programmes but rather involves the hiring of the worker in accordance with the provisions of ordinary labour legislation. (Endnote 30)
Conclusions of the Committee
60. The Committee refers to the considerations it has set forth on the Minimum Employment Programme and the Employment Programme for Heads of Household in connection with Convention No. 122, which have led it to the conclusion, following the Committee of Experts, that persons enrolled in these programmes cannot be considered to enjoy freely chosen employment.
61. In accordance with Article 2, paragraph 1, of Convention No. 29, the term "forced or compulsory labour" means all work or service exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
62. The Committee considers that work carried out by many persons, paid for with excessively low wages and not offering the protection of the labour and social security legislation, can give rise to doubts concerning its voluntary nature, particularly when it involves not a temporary or emergency solution but a situation that tends to last. Even taking into account the information given by the Government on persons enrolled in the PEM who could not be considered as a part of the labour force, it appears reasonable to think that persons who are unemployed and capable of working and who enrol in the Minimum Employment Programme or the Employment Programme for Heads of Household are driven to this by the lack of any better alternative, in order to obtain some income, however modest. Besides, they can improve their possibilities of obtaining stable employment because, in order to benefit from the subsidy provided in Act No. 18.206, 1983, employers are obliged to engage those who were receiving unemployment benefits or were enrolled in one of the programmes for the absorption of unemployment. Furthermore, to the extent that the persons undertake productive activities or normal activities of the public services, this situation of constraint leads to a disproportion between the wages paid and the value of the work carried out for the Government.
63. The Committee considers that it would be advisable to adopt suitable measures as regards the Minimum Employment Programme and the Employment Programme for Heads of Household, particularly in respect of pay and other conditions of employment, to ensure that, in the absence of a better alternative, these programmes may be converted into tools of a freely chosen employment policy that also meets the other requirements of Convention No. 122.
Recommendations of the Committee
64. The Committee recommends that the Governing Body:
(a) approve the present report and, in particular, the following conclusions:
Questions concerning hours of work
(Conventions Nos. 1 and 30)
(i) Suitable steps should be taken to amend sections 36 and 39 of Legislative Decree No. 2.200 of 1978, as amended by Act No. 18.018 of 1981, so that:
- in the event of an uneven distribution of weekly hours of work, the ordinary working day shall not exceed nine hours in industry and ten hours in commerce and offices, in accordance with the provisions of Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30;
- the working of overtime by persons employed in commerce may be authorised only by regulations, issued after consultation with the workers' and employers' organisations, determining the number of additional hours that may be allowed in the day and in the year, in accordance with the provisions of Articles 7, paragraph 3, and 8 of Convention No. 30.
Questions concerning employment
(Conventions Nos. 2 and 122)
(ii) Suitable steps should be taken to appoint the committees including representatives of employers and of workers referred to in Article 2 of Convention No. 2;
(iii) Suitable steps should be adopted urgently to declare and pursue, as a major goal, in consultation with the representatives of the employers and workers, an active policy designed to promote productive and freely chosen employment, in accordance with Convention No. 122, to review the measures of economic and social policy relating to the goals provided for in Article 1 of this Convention and, in particular, to make the corresponding changes in the basis of the offical employment programmes (PEM and POJH).
Questions concerning forced or compulsory labour
(Convention No. 29)
(iv) Suitable steps should be taken, in particular, to improve the conditions of employment, especially wages, in the official employment programmes, and to bring the participants in these programmes under the protection of the labour and social security laws, in order to avoid situations of pressure to accept a job which might give rise to doubts as to compliance with Convention No. 29.
Supply of information and follow-up
(v) The Government should furnish information in the reports that it submits under article 22 of the Constitution of the ILO on the application of the Conventions mentioned in the representation, concerning the measures taken or planned to give effect to the recommendations set forth in this report and concerning the points requiring clarification (see paragraph 57(3)), in order to enable the Committee of Experts on the Application of Conventions and Recommendations to continue the examination of the questions dealt with in this report.
(b) declare the closure of the present procedure initiated before the Governing Body as a result of the representation made by the National Trade Union Co-ordinating Council of Chile respecting the application by Chile of the Hours of Work (Industry) Convention, 1919 (No. 1); the Unemployment Convention, 1919 (No. 2); the Forced Labour Convention, 1930 (No. 29); the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30); and the Employment Policy Convention, 1964 (No. 122).
Geneva, 28 May 1984 (Signed) A. Malintoppi (Endnote 31)
Chairman
A. Verschueren
J. Svenningsen
Endnote 1
It will be recalled that at the 226th Session of the Governing Body the Chairman announced that the Committee which the Governing Body had set up at its 223rd Session (May-June 1983) to examine the above representation, composed of Mr. Malintoppi, Government member and Chairman, Mr. Verschueren, Employer member, and Mr. Svenningsen, Worker member, had adopted its report. As a result of the untimely death of Mr. Malintoppi, Mr. Verschueren would present the report to the Governing Body at its 228th Session (November 1984) (see minutes of the 226th Session, fourth sitting, p. 1).
Endnote 2
The text of the representation and Part VIII of the report enclosed with it are reproduced in document GB.223/14/39, Appendices I and II respectively.
Endnote 3
Convention No. 1 was ratified on 15 September 1925; Conventions No. 2 and No. 29 on 31 May 1933; Convention No. 30 on 18 October 1935; and Convention No. 122 on 24 October 1968.
Endnote 4
See Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
Endnote 5
See doc. GB.223/14/39 and doc. GB.223/205, para. 91.
Endnote 6
By letter of 7 May 1984 the National Trade Union Co-ordinating Council of Chile sent the ILO a report on the situation of workers in Chile since the 69th Session of the International Labour Conference in 1983. This report deals in part with the employment situation described in the allegations of the organisation that made the representation, with more recent statistical information, particularly concerning the reduction in certain places in the number of persons enrolled in the PEM and POJH.
Endnote 7
Their 18 questions dealt with: the unemployment figures in general for employees in the public sector; the amount of the minimum statutory income; wage and salary indices and inflation rates between 1974 and 1984; the 100,000 new jobs which, on an average, had been created between 1976 and 1980; the sectors in which they had been created; the way in which the persons enrolled in the Minimum Employment Programme (PEM) or in the Employment Programme for Heads of Household (POJH) had benefited from them; in relation to these programmes: the number of persons registered and the percentage of the economically active population which they represent, their remuneration and other benefits, the works done and in progress, the possible conflict of interest between the workers in these programmes and other workers with whom they have to participate jointly in certain works or services, the right to organise for workers who perform activities such as those normally done by municipal or national public administrations, and the consequences following from the withdrawal of those programmes, and their foreseeable future; the works done and in progress, under the responsibility of private firms, financed with budgetary resources initially destined for the PEM or the POJH (type, amount, form of adjudication, number of workers, remuneration paid, etc.); unemployment insurance (number of beneficiaries, median amount and length of receipt of benefits, financing, relationship to the PEM and to the POJH, etc.). The Committee requested copies of Supreme Decree No. 4 of 1984, the draft legislative amendments related to the regulation of hours of work, administrative measures on the subject of employment in the public sector, and any other pertinent document.
Endnote 8
Article 2 of Convention No. 1
The working hours of persons employed in any public or private industrial undertaking or any branch thereof, other than an undertaking in which only members of the same family are employed, shall not exceed eight in the day and forty-eight in the week, with the exceptions hereinafter provided for:
(a) the provisions of this Convention shall not apply to persons holding positions of supervision or management, nor to persons employed in a confidential capacity;
(b) where by law, custom, or agreement between employers and workers' organisations, or, where no such organisations exist, between employers' and workers' representatives, the hours of work on one or more days of the week are less than eight, the limit of eight hours may be exceeded on the remaining days of the week by the sanction of the competent public authority, or by agreement between such organisations or representatives; provided, however, that in no case under the provisions of this paragraph shall the daily limit of eight hours be exceeded by more than one hour;
(c) where persons are employed in shifts it shall be permissible to employ persons in excess of eight hours in any one day and forty-eight hours in any one week, if the average number of hours over a period of three weeks or less does not exceed eight per day and forty-eight per week.
Endnote 9
Article 3 of Convention No. 30
The hours of work of persons to whom this Convention applies shall not exceed forty-eight hours in the week and eight hours in the day, except as hereinafter otherwise provided.
Article 4
The maximum hours of work in the week laid down in Article 3 may be so arranged that hours of work in any day do not exceed ten hours.
Article 5
1. In case of a general interruption of work due to (a) local holidays, or (b) accidents or force majeure (accidents to plant, interruption of power, light, heating or water, or occurrences causing serious material damage to the establishments), hours of work in the day may be increased for the purpose of making up the hours of work which have been lost, provided that the following conditions are complied with:
(a) hours of work which have been lost shall not be allowed to be made up on more than thirty days in the year and shall be made up within a reasonable lapse of time;
(b) the increase in hours of work in a day shall not exceed one hour;
(c) hours of work in the day shall not exceed ten.
2. The competent authority shall be notified of the nature, cause and date of the general interruption of work, of the number of hours of work which have been lost, and of the temporary alterations provided for in the working timetable.
Article 6
In exceptional cases where the circumstances in which the work has to be carried on make the provisions of Articles 3 and 4 inapplicable, regulations made by public authority may permit hours of work to be distributed over a period longer than the week, provided that the average hours of work over the number of weeks included in the period do not exceed forty-eight hours in the week and that hours of work in any day do not exceed ten hours.
Endnote 10
Article 7 of Convention No. 30
Regulations made by public authority shall determine -
1. The permanent exceptions which may be allowed for -
(a) certain classes of persons whose work is inherently intermittent, such as caretakers and persons employed to look after working premises and warehouses;
(b) classes of persons directly engaged in preparatory or complementary work which must necessarily be carried on outside the limits laid down for the hours of work of the rest of the persons employed in the establishment;
(c) shops and other establishments where the nature of the work, the size of the population or the number of persons employed render inapplicable the working hours fixed in Articles 3 and 4.
2. The temporary exceptions which may be granted in the following cases:
(a) in the case of accident, actual or threatened, force majeure, or urgent work to machinery or plant, but only so far as may be necessary to avoid serious interference with the ordinary working of the establishement;
(b) in order to prevent the loss of perishable goods or avoid endangering the technical results of the work;
(c) in order to allow for special work such as stock-taking and the preparation of balance sheets, settlement days, liquidations, and the balancing and closing of accounts;
(d) in order to enable establishments to deal with cases of abnormal pressure of work due to special circumstances, in so far as the employer cannot ordinarily be expected to resort to other measures.
3. Save as regards paragraph 2(a), the regulations made under this Article shall determine the number of additional hours of work which may be allowed in the day and, in respect to temporary exceptions, in the year.
4. The rate of pay for the additional hours of work permitted under paragraph 2(b), (c) and (d) of this Article shall not be less than one-and-a-quarter times the regular rate.
Endnote 11
Section 39 (draft). "The maximum weekly limit laid down in the first subsection of section 34 may not be distributed over more than six or less than five days.
In no case shall the hours of work exceed ten hours per day."
Endnote 12
Section 36 (draft). Second paragraph: "When the employer exercises the power provided for in the previous paragraph, no agreement for overtime work shall be made."
Endnote 13
With regard to overtime the Committee also takes note - since it has a bearing on the representation - of section 42 of Legislative Decree No. 2.200, which unrestrictedly admits up to two hours' overtime per day in operations that are not harmful to the health of the worker. The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations has considered that this provision conflicts with Article 6, paragraph 1(b), of Convention No. 1, under which temporary exceptions to daily hours of work are allowed only to enable establishments to deal with exceptional cases of pressure of work, and then through regulations made after consultation with the organisations of employers and workers concerned (Article 6, paragraph 2). Likewise, the Committee takes due note of Article 43, paragraph 2, which recognises as overtime hours those hours worked, with the knowledge of the employer and although they have not been made the subject of a written agreement, which exceed the agreed working hours.
Endnote 14
Article 8 of Convention No. 30
The regulations provided for in Articles 6 and 7 shall be made after consultation with the workers' and employers' organisations concerned, special regard being paid to collective agreements, if any, existing between such workers' and employers' organisations.
Endnote 15
Draft amendment to Legislative Decree No. 1.446 of 1976 to approve rules for training and employment. "First and only section ... 16. To be added to section 35, the following second paragraph, with the present second paragraph becoming the third paragraph: In order better to achieve the task which is set forth in the previous paragraph with respect to municipal employment offices, the National Service shall take into consideration the information which committees composed of representatives of workers and employers may provide it concerning their operation."
Endnote 16
Jaime Ruiz-Tagle P.: El Modelo neo-liberal y el Programa del Empleo Mínimo en Chile, mimeographed document, p. 26. Reference is made in particular to Act No. 18.018, which amended the provisions on the labour contract, Act No. 18.134, which abolished the adjustments to compensate for rises in the cost of living and Act No. 18.198, which abolished the "floor" (minimum wages for bargaining) established by the Labour Plan for the real wages of workers bargaining collectively. Moreover, the legal minimum income (which was 5.445 pesos in August 1983, according to Serie de indicadores económico sociales, No. 7, Santiago, Programa de Economía del Trabajo, Academia de Humanismo Cristiano, p. 5) was maintained without any adjustment between August 1981 and June 1983, while its purchasing power went down by 26.2 per cent as a result of a rise in prices of 35.5 per cent. See Jorge Leiva Lavalle, with the assistance of Berta Teitelboim: La Crisis Económica 1982-1983, Report No. 8 in the series Situación Económica de los Trabajadores (Santiago, Programa de Economía del Trabajo, Academia de Humanismo Cristiano, Aug. 1983), p. 27.
Endnote 17
Jaime Ruiz-Tagle P., op. cit., pp. 1-3. It is stated in the same document (p. 3) that the true rate of unemployment, including persons registered under the Minimum Employment Programme and the Employment Programme for Heads of Household, was 19.7 per cent during the decade 1974-83, compared with 5.2 per cent during the decade 1964-73, which would indicate that the changes introduced led to a high level of structural unemployment. Similarly, average wages during the period 1974-83 were 21.5 per cent lower than in 1970, and the reduction in social expenditure between 1970 and 1980 was 22.1 per cent. According to Leiva Lavalle, op. cit., pp. 6, 12 and 30, and according to official figures, in 1982 the gross national product went down by 14.3 per cent in comparison with 1981; gross national revenues went down by 19.7 per cent in the same period, and industrial production was 21.6 per cent lower than in 1981. At the same time, the Index of salaries and wages showed a decline in the purchasing power of the remuneration paid in medium-sized undertakings, which became more marked as from June 1982 with the rise in prices and the devaluation in that year (the value of the United States dollar, on a monthly average, changed from 39 pesos in May 1983 to 79.50 pesos in August 1983 and 88.18 in March 1984):
Index of salaries and wages
(August 1981=100)
Nominal indices Real indices
Salaries Salaries Wages Salaries Salaries Wages
and wages and wages
January 1981 86.2 84.7 88.0 91.2 89.5 92.9
August 1981 100.0 100.0 100.0 100.0 100.0 100.0
July 1982 101.7 105.4 97.7 97.5 100.9 93.6
March 1983 110.4 113.9 106.5 86.4 89.1 83.3
April 1983 112.0 - - 85.0 - -
Endnote 18
The percentages of unemployed for 1983 have been taken from the Serie de indicadores ..., op. cit., p. 1. There is some internal variation in the figures supplied by the National Trade Union Co-ordinating Council of Chile, depending on the source and the period of the year. Thus, according to data attributed to the University of Chile, in March 1983 the real percentage of unemployed was 34.6 per cent.
Endnote 19
The provisions of Legislative Decrees Nos. 307 and 603 of 1974 were combined in Legislative Decree No. 150 of 27 August 1981, which promulgated the consolidated, co-ordinated and systematised text of the provisions on the single system of family allowances and the system of unemployment benefit for workers of the private and public sectors.
Endnote 20
Workers registered with the PEM
National total
1980 (Annual average) 190 763
1981 (Annual average) 175 607
1982 (Annual average) 225 290
July 1983 380 596
December 1983 263 763
1983 (Annual average) 341 578
January 1984 250 649
February 1984 175 790
Source: INE (National Institute of Statistics), cited in Serie de indicadores ..., op. cit., p. 2 and in the May 1984 report of the organisation making the representation (last four figures).
Endnote 21
In the documentation supplementing the representation, it is asserted that work in the PEM may be assimilated to the ordinary work of a wage-earner in respect of the time and the pace of the work, and that, in fact, the Central Government and the Municipalities have transferred to the PEM important programmes which benefit the national community, and that in this way it has been possible for many municipal employees to be replaced by persons enrolled in the PEM, which represents significant savings for the State. See Jaime Ruiz-Tagle P., op. cit., p. 7; B. El costo del PEM y la productividad, mimeographed document, p. 5.
Endnote 22
This amount was enough to buy 1.9 kg of bread per day in July 1982 and in July 1983 only 1.2 kg. See Leiva Lavalle, op. cit., p. 36.
Endnote 23
Workers enrolled in the POJH
National total
October 1982 54 187
November 1982 86 641
December 1982 102 772
July 1983 150 296
December 1983 221 944
January 1984 201 573
February 1984 178 276
Source: INE (National Institute of Statistics), cited in Serie de indicadores ..., op. cit., p. 3 and in the May 1984 report of the organisation making the representation (last three figures).
Endnote 24
See La Nación, 7 May 1983; Noticias, 16 May 1983; La Segunda, 14 June 1983; El Mercurio, 23 May and 31 July 1983.
Endnote 25
The representative of the Government estimated the average annual amount of newly employed at 98,000 and said that the new jobs made it possible to give work to persons enrolled in the PEM and the POJH, but that the figures for those programmes were not reduced since, owing to problems of supervision, persons who did not form part of the labour force had been incorporated in these programmes.
Endnote 26
In information communicated in 1981 to the Committee of Experts - which took note of it in a direct request - and repeated in 1983, the Government stated that the Socio-Economic Programme for 1981-89 included among its goals the creation of 1 million new jobs through an open labour market. Furthermore, in its replies to the comments made by the Committee of Experts in 1983 the Government stated that the employment plan for 1983 was intended to establish programmes for the recruitment of workers, to give effect to investment projects of great social benefit and to adopt measures to ensure that the increase in employment covered the whole country. To attain these goals, the Government said that it was introducing a broad programme of public investment in profitable projects that were highly labour intensive, a fund for pre-investment studies, subsidies for the engagement of workers, and modification of unemployment benefits; furthermore, the policy of avoiding mass dismissals in the public administration was to be maintained.
Endnote 27
Legislative Decree No. 150 of 1981, section 52: "The receipt of unemployment benefits shall be incompatible with any paid activity. None the less, the unemployed person may receive, together with the benefit to which he is entitled, the remuneration which is paid in accordance with the system of the minimum guaranteed employment to which section 60 of this Decree refers." The information provided by the Government contains an estimate that for December 1983 the number of beneficiaries in receipt of the said benefit, averaging a sum of 4,000 pesos, was 1,044 in the public sector and 113,302 in the private sector. Not indicated is how many of these persons also received payments from any of the employment programmes or the actual average duration of the receipt of unemployment benefits.
Endnote 28
The representative of the Government affirmed that the item in the PEM labelled "other expenses" not only includes the resources allocated to materials and tools, but those also allocated to agreements reached for the benefit of those enrolled, and in this respect cited those reached with CARITAS (1975-77) and CARE (1978 to date) for the provision of food and with the Institute of State Insurance (until 1978) for accident insurance, with the Ministry of Health (until January 1978) for the care of those enrolled and their family members, as well as agreements for the training and literacy education of those enrolled in the PEM (between 1976 and 1979).
Endnote 29
The percentages of unemployment would be the following:
Government figures Figures from the (Oct.-Dec. 1983) claimant organisations (May-July 1983)
Official 14.6 17.8
PEM and POJH 13.6 14.2
28. 2 32
Endnote 30
The Committee notes in this respect that Act No. 18.206 provides as follows: section 6: "The employers are entitled to a subsidy for the additional engagement of workers. This subsidy is payable only when at the date of the engagement the worker was receiving the unemployment benefit established by Legislative Decree No. 1050 (...) or was registered under one of the general programmes for the absorption of unemployment undertaken by the municipalities ...". The Government representative stated that under this subsidy, 109,000 workers had been engaged, which represented 3 per cent of the labour force.
Endnote 31
See paragraph 11.