Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Chili (Ratification: 1999)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020) relating to the measures adopted in the context of the COVID-19 pandemic. The Committee has taken due note of this information in its observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee also notes the observations of the Single Central Organization of Workers of Chile (CUT), received on 6 October 2020, relating to the application of the Convention in practice. The Committee requests the Government to provide its comments in this regard.

The Committee notes that, as to the complaint made under article 26 of the ILO Constitution alleging failure to comply with this and other ILO Conventions by the Republic of Chile, made by a Worker delegate to the International Labour Conference in 2019, the Governing Body decided not to refer the matter to a Commission of Inquiry and to close the procedure under article 26; and invited the Government to continue reporting to the ILO regular supervisory system on measures taken to apply in law and practice the Conventions concerned.

As to other pending matters, the Committee reiterates the content of its comments adopted in 2019 and reproduced below.

The Committee notes the observations relating to the application of the Convention in law and practice (including allegations of violations in the public, financial, transport, food and copper sectors) provided by the following organizations: the Confederation of Copper Workers (CTC), the General Confederation of Public and Private Sector Workers (CGTP) and the World Federation of Trade Unions (WFTU, taking up the observations of the CGTP), all received on 30 August 2019; the International Trade Union Confederation (ITUC), received on 1 September 2019; and the observations of the Federation of Workers Unions of Chile (FESINTRACH), received on 2 September 2019, the No. 1 Promotion CMR Falabella Enterprise Union, received on 20 September 2019, and the Single Central Organization of Workers of Chile (CUT-Chile), received on 26 October 2019. The Committee requests the Government to provide its comments in this regard. Observing that the Government has not replied to the various requests made in its previous comments, including in relation to the many observations provided by the social partners in 2016, the Committee trusts that it will receive the missing information in the next report.

Article 1 of the Convention. Anti-union discrimination. In its previous comment, the Committee, welcoming the provisions adopted to broaden and strengthen protection against anti-union discrimination, requested the Government, in the 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 the new provisions, evaluating in particular their effective application and dissuasive effect. The Committee notes the Government’s response to the observations of the CGTP and the ITUC in this respect: (i) referring to the applicable provisions of the Labour Code on anti-union and unfair practices (sections 289–292 and 403–406), and recalling that the resolution of complaints is the responsibility of the labour courts, the Government indicates that as a result of the labour reform introduced through Act No. 20940, the legislation establishes distinctions based on the size of the enterprise, with a heavier system of sanctions for medium-sized and large enterprises, and places emphasis on the objective nature of anti-union acts, irrespective of whether they are intentional or not; (ii) the Government indicates that a register is maintained of convictions for anti-union or unfair practices in collective bargaining and the list of enterprises and organizations that are non-compliant is published every six months, with an indication of the acts penalized and fines imposed; the Government refers in this regard to the data on the rulings issued between 2016 and the first half of 2019 (which show that on average there were over 42 convictions each year); (iii) with regard to the legislative requirement to indicate the name of all workers who are members of a union, the Government indicates that, rather than facilitating anti-union discrimination, the provision has a protective purpose by giving effect to the trade union protection enjoyed by such workers under section 309 of the Labour Code (from ten days prior to the submission of the draft collective agreement until 30 days following its conclusion, and that if during this period the workers in question are dismissed, the Directorate for Labour has a special investigation procedure with the purpose of requiring reinstatement); in this regard, it emphasizes the need to know which workers are engaged in collective bargaining; it is also based on other considerations (for example, in order to identify the workers concerned by the collective bargaining process in the event of tacit acceptance by the employer of the union’s proposal), and it specifies that, once the protection afforded for collective bargaining has expired, section 294 of the Labour Code provides for a procedure for setting aside any anti-union dismissal; and (iv) with reference to claims concerning the existence of obstacles and the lack of mechanisms and means to denounce and penalize anti-union practices, the Government indicates that, during the first half of 2019, there were 26 rulings penalizing anti-union or unfair practices in collective bargaining which were given effect and, in 23 of these cases, fines were imposed of between 20 and 300 monthly tax units (approximately equivalent to between US$1,350 and US$20,400); and that a total of 6,992 complaints of anti-union and unfair practices were made between 2013 and March 2018 to the Directorate for Labour, of which 352 related to unlawful individual reinstatement (abandoning a strike to individually negotiate labour conditions) or the replacement of striking workers (with 62 per cent of the complaints relating to reinstatement and replacement being upheld). The Committee also notes that the observations of the social partners include new allegations of anti-union discrimination, and claims that the system of protection against anti-union discrimination is still ineffective and not dissuasive (indicating, for example, that even the maximum penalty of 300 monthly tax units is not dissuasive for a multinational enterprise). While welcoming the detailed explanations and information provided by the Government, the Committee invites it to engage in dialogue with the most representative organizations on the evaluation of the system of protection against anti-union discrimination described above, with an assessment in particular of its application in practice providing information in this regard.

Article 4. Promotion of collective bargaining. Workers’ organizations and negotiating groups. In its previous comment, the Committee noted that: (i) the Constitutional Court found that it would be unconstitutional to provide that workers can only negotiate through unions, considering that, in accordance with the Chilean Constitution, collective bargaining is the right of each and every worker and that this Convention and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ratified by Chile do not require negotiating groups to be excluded from domestic legislation; and (ii) the Government indicated that only collective bargaining with trade unions is regulated by the Labour Code, and that this situation was being assessed with the social partners, and that the Government trusted that a satisfactory solution would be reached in accordance with the Workers’ Representatives Convention, 1971 (No. 135). The Committee notes the Government’s indication in its latest report that: (i) in view of the ruling of the Constitutional Court, the Directorate for Labour issued Opinion No. 3938/33, of 27 July 2018, supplementing and partially reconsidering the previous approach relating to agreements concluded by negotiating groups, and indicating that these agreements constitute a collective instrument recognized explicitly by the Labour Code, which have to be registered by the labour inspectorate; (ii) various trade unions lodged an appeal for protection of their rights against this Opinion with the Court of Appeal of Santiago, which was upheld by the Court, although an appeal was then made to the Supreme Court, which set aside the ruling; and (iii) if a trade union considers that the establishment of a negotiating group or the benefits granted by the employer to a negotiating group imply any act of discrimination, action can be taken in the courts as an anti-union practice, and the corresponding administrative complaint can be made to the Directorate for Labour. The Committee also notes the observations of the CTC, CGTP and WCTU, which once again allege that the recognition of collective bargaining rights to these groups is contrary to the Convention, that this right was set out by Opinion No. 3938/33, referred to above, and that they consider that its purpose is to weaken trade unions and undermine collective bargaining. The Committee also observes that negotiating groups are not defined in the Labour Code.

The Committee is bound to recall once again that, without prejudice to the fact that Chilean legislation recognizes that each and every worker has the right to engage in 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 methods of association. 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 methods of association that 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 association 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 and work by groups which do not fulfil the guarantees to be considered workers’ organizations can be used to discourage freedom of association and weaken workers’ organizations that are able to defend independently the interests of workers through collective bargaining. The Committee requests the Government to adopt, through social dialogue, measures that effectively recognize the fundamental role and the prerogatives of representative organizations of workers and of their representatives, and 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.

State enterprises. 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 that the Government reiterates that this section has not been amended with respect to enterprises and institutions financed in part by the fiscal budget. In this regard, the Committee is bound to recall once again 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 urges the Government to take the necessary measures to guarantee, in law and practice, that the categories of workers referred to previously can participate in collective bargaining, and to report any developments in this regard.

Article 6. Scope of application of the Convention. Public employees not engaged in the administration of the State. In its previous comment, the Committee noted that the reform of the Labour Code which entered into force in 2017 had not given effect to the request to amend section 1 (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, on condition that such officials or workers are subject by law to special regulations). The Committee requested 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 notes that the Government has not replied to the issue raised and reiterates the information provided in its previous report, indicating that 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 once again 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 once again requests the Government to provide, in its next report on Convention No. 151, clarifications regarding the application of the guarantees of that Convention to all workers in the public administration.

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.