Texts of pending comments

Articles 2 to 6 of the Convention. Formulation and application of a policy designed to promote the granting of paid educational leave. Participation of the social partners. The Committee notes with interest the adoption on 18 July 2019 of Act No. 21.165 on the alternative partial working day for student workers introducing section 40 bis(E) into the Labour Code and amending other texts regulating related aspects. The Government indicates that the purpose of Act No. 21.165 is to resolve the principal regulatory barriers which make it difficult to hire young persons formally with an employment contract by, among other measures, enabling them to interrupt the working day to attend classes or to benefit from unpaid leave to sit their academic exams, thereby facilitating the reconciliation of work and studies. Social and student benefits are also maintained by not taking into consideration the remuneration received by these persons in the social registration of households. The Government indicates that this is also designed to anticipate the access of young persons to the labour market, thereby facilitating this type of relations between enterprises and students. Another of the objectives of Act No. 21.165 is to encourage young persons who are not in the education system or who are at risk of dropping out of it for economic reasons to be able to enter and remain in education. In this regard, the Government indicates that, according to the 2017 National Socio-economic Characteristics Survey (CASEN) of the Social Observatory, 6.2 per cent of young persons between the ages of 18 and 24 years who were working or seeking employment indicated that the main reason why they were not attending an educational establishment was due to economic considerations and 34.2 per cent said that it was due to work or the fact that they were seeking work.

The Committee notes that the partial working day established by Act No. 21.165 is only applicable to “student workers”. In accordance with section 40 bis(E) of the Labour Code, “student workers” are considered to be “any person between 18 and 24 years of age who is engaged in regular studies or in the process of qualifying in a vocational or technical university higher education institution recognized by the State or in establishments implementing levelling up study programmes”. Workers covered by the partial working day benefit from all the other workers’ rights set out in the Labour Code for full-time workers (section 40 bis(B), first indent). The second transitional section of Act No. 21.165 also provides that the Higher Labour Council, a tripartite body, shall prepare an annual report for the first three years when the Act is in force to evaluate the implementation and monitoring of its provisions, its impact on the academic results of student workers and the impact of this type of contract on young persons who are not students and on workers in general. Based on the evaluation, a decision will be taken on the continuation of the measure or the introduction of the necessary amendments to Act No. 21.165. In relation to the 2018 observations of the Single Central Organization of Workers of Chile (CUT-Chile), the Committee notes the Government’s indication that the evaluation of Act No. 21.165 is complex as its implementation is relatively recent and there is no official record of enterprises which apply the Act. However, the Government indicates that, based on the analysis undertaken by the Higher Labour Council, good progress is being made in the achievement of the objectives of Act No. 21.165 and it is adapted to the situation experienced by young persons in the country.

The Committee also notes the reference by the Government to the Bill to amend section 1 of the Skills and Employment Charter, which was approved by the Chamber of Deputies on 10 March 2020 and is currently undergoing its second constitutional reading. The Bill, among other measures, envisages allowing all currently accredited higher education institutions (technical training centres, universities and vocational institutes) to register modules as part of technical careers. These institutions must have a system for recognizing previous learning and for approving the skills of workers engaged in modular skills training with a view to preventing the financing of skills programmes that do not provide workers with new knowledge or skills. However, the Committee observes that the Government has not provided information on the number of workers benefiting from paid educational leave for vocational training, or for general, social or civic education. The Committee requests the Government to continue providing detailed and updated information on the formulation and application of policies and measures to promote, in collaboration with the social partners, the granting of paid educational leave for the specific objectives set out in Article 2 of the Convention. It also requests the Government to provide updated information on the impact of Act No. 21.165 on the exercise of the individual and collective rights of the persons concerned, and on the number of persons employed under the new contracts. The Committee also requests the Government to provide information on the situation with regard to the Bill to amend section 1 of the Skills and Employment Charter and to provide a copy of the Charter once it has been adopted. Finally, the Committee requests the Government to provide updated statistical data, disaggregated by sex and age, on workers who have benefited from paid educational leave for all levels of vocational training, and for general, social or civic education (Part V of the report form).

Article 2(c). Paid leave for trade union education. The Committee notes the information provided by the Government on the number of workers who benefited from leave for trade union education during the period covered by the report. The Government indicates that, between 2018 and 2020, a total of 1,503 women and 1,278 men workers participated in further training courses, in the New Leaders course and in Trade Union Leadership courses (EFSLS) within the framework of the Trade Union Training and Collaborative Labour Relations Fund. The Government also reports that, during the same period, 1,458 women workers participated in Women Leaders trade union training courses (EFSML). In 2020, four men participated in these courses as part of a pilot gender equity project for the inclusion of men in the EFSML. The Committee requests the Government to continue providing statistical data, disaggregated by sex, on the number of workers who have benefited from study leave for trade union education.

The Committee welcomes the ratification by Chile of the Protocol of 2014 to the Forced Labor Convention, 1930, and hopes that the Government will provide detailed information on its application, in accordance with the report form adopted by the Governing Body.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee welcomed the actions taken by the Government to introduce an action plan to combat trafficking in persons based on a comprehensive and coordinated approach, and encouraged the Government to continue taking measures for its implementation. The Committee also requested the Government to continue reinforcing the efforts made to provide adequate protection for victims and invited it to continue providing information on the prosecutions brought under section 411 quater of the Penal Code, (introduced by Act No. 20507 of 2011), which criminalizes trafficking in persons.

The Committee notes the detailed information provided by the Government in its report on the measures taken within the framework of the implementation of the four strategic axes of the action plan to combat trafficking in persons for the period 2019–2022. It notes in particular the continuation of training activities for public officials and personnel of the brigade to investigate trafficking in persons under the Chilean Police (BRITRAP), and the carrying out of awareness-raising activities among vulnerable groups and priority sectors, including Venezuelan migrants. In the area of protection, the Committee notes that the Intersectoral Protocol on assistance for victims of trafficking in persons continues to operate and that, since its creation in 2013, assistance has been provided to 229 persons (59 victims of sexual exploitation and 170 victims of labour exploitation) in the areas of health, legal assistance, migration regulation, social assistance and education. According to information from the under-secretariat for crime prevention, 59 per cent of the victims who came under the Intersectoral Protocol in 2020 had an irregular migratory status and 55 percent were women. In this regard, the Committee takes due note that under section 71 of Act No. 21325 on migration and aliens enacted on 20 April 2021 (which will enter into force once the corresponding regulations have been issued), victims of trafficking in persons who are not nationals or permanent residents in the country will have the right to submit a request for authorization of temporary residence for a minimum period of 12 months, during which time they may file criminal and civil actions and initiate proceedings to regularize their residency status.

With regard to the enforcement of criminal legislation against trafficking in persons, the Committee notes that from 2011 to 2020, 21 convictions were obtained (13 relating to trafficking for the purpose of sexual exploitation and eight for trafficking for the purpose of labour exploitation) and 34 persons were convicted. In addition, reinforcement was provided for personnel capacities and material resources available to the brigade to investigate trafficking in persons, which has three specialized units in the metropolitan region, Arica and Iquique.

The Committee encourages the Government to continue its efforts to combat trafficking in persons, and to continue to take steps to implement the action plan and evaluate its impact, as well as to strengthen the capacities of the bodies responsible for identifying and protecting victims, and investigating cases of trafficking. It requests the Government to provide information in this regard, and on investigations and legal proceedings initiated and concluded under section 411 quater of the Penal Code, indicating the number of convictions and penalties imposed. Given that, according to the statistics provided by the Government, a large number of victims of trafficking are migrant men and women in an irregular situation, the Committee requests the Government to continue to provide information on the measures taken to raise awareness, inform and protect these victims in particular, including information on the shelters made available to them and agreements signed with the countries of origin. It also requests the Government to provide information on the number of persons who have benefited from the procedure established under section 71 of Act No. 21325 on migration and aliens.

Articles 1(1) and 2(1). 1. Vulnerability of migrant workers to conditions of forced labour. The Committee notes that section 9 of Act No. 21325 on migration and aliens establishes that irregular migration does not constitute a crime. Section 13 of Act No. 21325 provides that the State shall promote respect and protection of non-national women, irrespective of their migratory status, who shall also have the right to access all institutions and mechanisms that safeguard their well-being. The Committee takes note that, in its concluding observations of 11 May 2021, the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families referred to the lack of information on steps taken to monitor the situation of women migrant domestic workers, including the more than 40 per cent who are in an irregular situation, and on complaint mechanisms (CMW/C/CHL/CO/2, para. 33). In this respect, the Committee recalls that migrant workers, in particular those in an irregular situation, are among the persons most vulnerable to conditions of labour that may amount to forced labour. The Committee takes note of the legal provisions adopted to guarantee respect of the rights of migrant workers in an irregular situation and encourages the Government to continue taking measures in this regard. To this end, the Committee requests the Government to provide information on the measures taken to detect breaches of the rights of migrant workers in an irregular situation which may result in practices that amount to forced labour, in particular in the domestic work sector.

2. Impact of the operation of the duty lawyer roster system on the free exercise of the profession of lawyer. For several years, the Committee has been referring to the recommendations formulated in 2008 by the tripartite committee set up to examine the representation made by the Colegio de Abogados de Chile on the operation of the duty lawyer roster system. In particular, the Committee referred to the need to review the overall functioning of the duty lawyer roster system to ensure that it had no adverse effects on the free exercise of the profession of lawyer, and to take the necessary measures to ensure that such a review took into account the volume of work imposed, the frequency of assignments, the financial losses incurred and the excessive nature of the sanction that is currently envisaged. In this respect, the Committee noted the decision of the Constitutional Court of 29 July 2009 (Decision No. 1254-08-INC) finding unconstitutional the unpaid nature of the legal aid provided by duty lawyers under section 595 of the Basic Code on Courts. This provision required duty lawyers to provide legal aid free of charge to persons with a low income designated by the trial judges. It also noted the Government’s efforts to resolve the weaknesses identified in the public legal aid system.

The Committee notes that, in January 2021, the under-secretariat for human rights submitted to National Congress the Bill providing for the establishment of the Bill providing for the establishment of the National Service for Access to Justice (bulletin No. 13991-07) as an institution responsible for providing legal advice to persons needing defence and not able to provide it for themselves, for which the above Service will have the necessary personnel. The Committee notes the Government’s indication that the legal initiative does not envisage the removal of the position of duty lawyers but that its implementation would have a positive impact on the number of cases which would be assigned to them. The Committee hopes that, once the legislation regulating the National Service for Access to Justice is adopted, it may have the effect of ensuring that the obligation imposed on duty lawyers to defend cases assigned to them (under sections 595 and 598 of the Basic Code on Courts, and sections 18 and 19 of Act No. 19.968 providing for the establishment of the family courts) is contained with reasonable limits of proportionality in respect of the volume of work imposed, the frequency of assignments and the financial compensation. The Committee meanwhile requests the Government to provide statistical and up-to-date information on the number of duty lawyers annually assigned to defend cases, the number of cases per lawyer and the frequency with which these are assigned, as well as information on the financial compensation granted in this regard.

Impact of compulsory prison labour on the application of the Convention. In its previous comments, the Committee noted that under section 32 of the Penal Code, persons sentenced to the penalty of presidio are obliged to perform work as determined by the respective prison rules. The Committee drew the Government’s attention to the need to amend the provisions of section 11 of the State Security Act (Act No. 12927), under which, collective work stoppages, walkouts or strikes in public services or public utilities or in activities pertaining to production, transport or commerce carried out in a manner inconsistent with the law and which disturb the peace or disrupt public utilities or services, the compulsory operation of which is established by law, or which harm a vital industry, shall constitute an offence and be liable to presidio (imprisonment). In the light of section 32 of the Penal Code, the Committee observed that the above section of the State Security Act could allow for the participation in a peaceful strike to be punishable with imprisonment involving compulsory labour.

The Committee notes that, in its report, the Government indicates that the regulations governing prison labour in Chile fall under the Regulation establishing the labour and training statutes for prison labour, which was adopted in 2011 by Decree No. 943 of the Ministry of Justice and repealed paragraph nine of the 1998 Penitentiary Establishments Regulation which contained provisions on prison labour. Under section one of the 2011 Regulations, any person under the supervision of the Chilean Prison Service may access the prison labour and/or job training services offered in prisons, with such activities aimed at providing participants with tools to promote their social integration, and at contributing to their economic development and that of their families. Further, under section 8 of the Regulations, labour and job training activities shall always be voluntary and may never be used as a punishment or other form of correction, nor considered a source of profit for the administration. The Committee takes due note of the Government’s indication that, in the light of this legislative provision, the imposition of labour under section 32 of the Penal Code can never imply the imposition of any kind of labour within the penitentiary establishments in the country, given the voluntary nature of such activities for persons deprived of their liberty.

Articles 1 and 2(1) of the Convention. National policy for the effective abolition of child labour and scope of application. In its previous comments, the Committee noted the National Strategy for the Elimination of Child Labour and the Protection of Young Workers (2015–2025), which is based on a rights, social protection, inter-culturality and shared responsibility approach, and it requested the Government to continue its efforts to ensure the progressive elimination of child labour.

The Committee notes the Government’s indication in its report that the National Strategy is currently being implemented and that it has contributed to institutional strengthening through the establishment in 2019 of the Department for the Elimination of Child Labour in the Subsecretariat of Labour. In this regard, the Committee also notes that, by Decree No. 173 of the Ministry of Labour and Social Welfare, published on 13 August 2021, the Advisory Ministerial Commission for the Prevention and Elimination of Child Labour and Protection of Young Workers was created within the Ministry of Labour and Social Welfare, and includes among its members representatives of various ministers and of the Intersectoral Forum on Trafficking in Persons, the National Youth Service, the Investigatory Police, the Confederation of Production and Commerce and the Single Central Organization of Workers. The role of the Advisory Commission is to work on proposals for the design of public policies with the objective of the sustainable elimination of child labour and the protection of young workers, and to collaborate with the Child Labour Observatory and other institutions engaged in the compilation of data (empirical, both quantitative and qualitative) to keep updating the national assessment of child labour and protected work for young persons. The Committee also notes that, within the framework of the National Strategy, in 2018 and 2019, the Ministry of Labour and Social Welfare took action to strengthen parental capacities in families with children and young persons engaged in child labour or at risk of entering the labour market early. Finally, the Committee notes with interest the adoption, in September 2020, of Act No. 21.271 amending the Labour Code in relation to the protection of boys, girls and young persons in the world of work, which replaces Book I, Title I, Chapter II of the Labour Code. It notes that the Act regulates in detail the conditions under which persons who have reached the minimum age for admission to work can undertake a work activity, including in relation to hours of work, rest periods and occupational safety and health conditions. The Committee welcomes the measures adopted by the Government to reinforce the national legal and institutional framework for the progressive elimination of child labour and requests it to continue its efforts to ensure that no boy or girl under the age of 15 is engaged in child labour, including in the informal economy. The Committee encourages the Government to continue providing information on the activities and programmes undertaken within the framework of the National Strategy for the Elimination of Child Labour, including in the informal economy, and on the results achieved.

Article 2(1). Minimum age for admission to employment or work. The Committee notes that section 13 of the Labour Code (as amended by Act No. 21.271) prohibits the recruitment of boys, girls and young persons under the age of admission to work, defined as persons under 15 years of age.

Article 3(1) and (2). Age of admission to hazardous work and determination of hazardous types of work. The Committee notes that, in accordance with section 15, as amended, by the Labour Code, no person under the age of 18 years shall be admitted to arduous work or activities that may be hazardous to their health, safety or morals, including work in establishments where alcoholic drinks are sold or where shows of a sexual nature are performed or exhibited. The Committee notes that, in August 2021, the Ministry of Labour and Social Welfare adopted Decree No. 1 issuing regulations under section 15 of the Labour Code, Title II of which sets out the activities considered to be hazardous in view of their nature (work at high temperatures, work involving chemicals or heavy machinery, work involving exposure to radiation, work undertaken on board passenger or goods transport vehicles, work in construction, work in mines and night work, among others); and activities considered to be hazardous due to the conditions in which they are performed (work under conditions of isolation, work performed without protective equipment, work involving a risk to mental health, among others). In accordance with section 15(5) of the Labour Code, the above regulations will be evaluated every four years.

Article 7. Light work. The Committee notes that section 14, as amended, by the Labour Code provides that young persons between the ages of 15 and 18 years may undertake protected work for young persons, defined as work that is not considered to be hazardous and which by its nature is not prejudicial to regular attendance at school and/or participation in vocational guidance or training programmes. In this respect, the hiring of young persons must be for the purpose of the performance of work that can be classified as protected work for young persons and must be subject to the written authorization of the person responsible for the personal care and legal representation of the young person (or in the absence of such a person, of the respective labour inspector). Moreover, the young person must demonstrate that they have completed middle school or is currently engaged in middle school or basic education, and working time may not be more than 30 hours a week, distributed in a maximum of six hours a day during the school year, and up to eight hours a day during breaks in the school year and the holiday period. The employer is required to inform the Local Children’s Office of the hiring of the young person. The Committee, while noting the provisions regulating the performance of work by young persons who have reached the age of 15, requests the Government to indicate the types of work which, under the terms of section 14, as amended, by the Labour Code, may be considered to be protected work for young persons.

Article 8. Artistic performances. The Committee notes that section 16, as amended, of the Labour Code permits the participation of boys, girls and young persons under 15 years of age in theatrical, cinema, radio, television and circus performances and other similar activities subject to the authorization of the Family Court and in accordance with the same requirements as for protected work by young persons (section 14, as amended, of the Labour Code). In this regard, the employer is required to pay for or provide transport and food under adequate conditions of hygiene and safety. The Committee requests the Government to provide information on the number of boys, girls and young persons whose participation in artistic performances has been authorized under the terms of section 16, as amended, by the Labour Code.

Article 9(1). Penalties. The Committee notes with interest that Act No. 21.271 includes new provisions in sections 18bis, 18ter, 18quater and 18quinquies of the Labour Code establishing fines for employers who hire boys, girls and young persons in violation of the provisions of the Labour Code. It notes in particular that, in accordance with section 18quinquies, in the event that an employer commits more than three infringements in relation to the hiring of persons under the age of admission to work or of young persons to perform hazardous types of work within a period of five years, the employer shall be prohibited from hiring young persons who are of the age for admission to work. The Committee welcomes the measures adopted by the Government and requests it to provide information on the application in practice of the penalties established by the Labour Code for violations of the provisions respecting the employment of boys, girls and young persons, including information on the number and nature of the violations committed, and the penalties imposed. In particular, the Committee requests the Government to indicate how often section 18quinquies of the Labour Code has been applied in practice, and how long the ban on hiring lawful-aged young persons lasts in such cases.

Labour inspection and application in practice. The Committee notes that, according to the Child Labour Vulnerability Index in Chile, developed by the Subsecretariat of Labour in collaboration with the ILO and the Economic Commission for Latin America and the Caribbean (ECLAC) and published in 2020, between 2015 and 2017 a total of 1247 violations in the field of child labour were identified by the Labour Directorate throughout the country. The Committee also notes the Government’s indication that a new national child labour survey is planned, which will be regional in scope, and that it will take into account the recommendations of the ILO International Conference of Labour Statisticians. The Committee encourages the Government to continue providing information on the inspections undertaken and the number and nature of the infringements identified by the Labour Directorate and other services in relation to work by boys and girls under the age of 15 in all sectors in the country, as well as the penalties imposed. The Committee also invites the Government to provide information on the findings of the next national child labour survey, when it has been completed, including updated statistics on the nature, extent and trends of child labour.

Article 3 of the Convention. Worst forms of Child labour. Clause (a) Sale and trafficking of children. In its previous comments, the Committee noted Act No. 20507 of 2011, which introduced into the Penal Code provisions criminalizing trafficking in persons and that established the penalty of rigorous imprisonment (reclusion mayor) in cases where the victims are minors (section 411quater of the Penal Code). The Committee notes that, according to the Statistical Report on Trafficking in Persons in Chile 2011-2020, prepared by the Intersectoral Forum on Trafficking in Persons, of the total number of victims of trafficking identified during the period 2011-2020, some 7 per cent were boys, girls and adolescents (of whom, 86 per cent were female and 14 per cent male). It notes that 47 criminal cases were prosecuted for trafficking in persons, of which 40 have been finalized and 21 resulted in convictions. However, the Committee observes that there is no information on the number of these cases that were related to victims under 18 years of age. The Committee therefore requests the Government to provide specific information on the number of investigations, judicial procedures and convictions under section 411quater of the Penal Code in relation to trafficking in children under 18 years of age. It also requests the Government to continue providing updated statistical data on the number of children who have been victims of trafficking for sexual and labour exploitation.

Clause (b). Use of children for prostitution, for the production of pornography or for pornographic performances. In its previous comments, the Committee noted that, in accordance with section 367 of the Penal Code, any person who promotes or facilitates the prostitution of minors to satisfy the desires of others shall be liable to the maximum sentence of presidio menor (short-term imprisonment). The Committee also noted the implementation by the Government of the Second Framework of Action to combat the commercial sexual exploitation of children and adolescents with the objective of reviewing and promoting legislation to penalize this practice. The Committee notes the Government’s indication in its report that a Third Framework of Action was established to combat the sexual and commercial exploitation of children and adolescents for the period 2017-19 with the objective of launching coordinated strategies involving public bodies and civil society actors to prevent and detect the commercial sexual exploitation of children. In 2020, the results of the Third Framework were evaluated with a view to the development of a Fourth Framework of Action. The Committee also notes that, according to the information from the System for the Single Recording and Intervention on the Worst Forms of Child Labour (PFTI) provided by the Government, during 2020 a total of 74 children and adolescents were recorded as being used for child pornography and 72 children and adolescents for paid sexual activities in the streets or enclosed spaces.

The Committee notes with interest that, in June 2021, the Government submitted to the Chamber of Deputies a Bill introducing a new paragraph into Book II, Title VII, of the Penal Code respecting the procuring and the sexual, commercial and pornographic exploitation of children and adolescents (Bulletin 14440-07). The Bill envisages the replacement of the term “prostitution” contained in section 367 of the Penal Code by “sexual exploitation”, meaning the use of a child under 18 years of age for a sexual act or an act with sexual significance in exchange for any type of remuneration. The Bill increases the penalty for committing this offence to any sentence of rigorous imprisonment (presidio mayor). The Bill also proposes the introduction into the Penal Code of a new section (section 367ter) establishing the penalty of shorter imprisonment (presidio menor) for the production of pornography using children under 18 years of age. The Committee welcomes the measures taken by the Government to prevent and penalize the use of children under 18 years of age for commercial sexual exploitation and the production of pornography, and requests it to provide information on progress in the adoption of the Bill to amend the Penal Code (Bulletin 14440-07). Furthermore, while awaiting the adoption of these reforms, the Committee requests the Government to provide information on the number of investigations, judicial procedures and convictions under section 367 of the Penal Code, and encourages it to continue providing updated statistical data on the number of children who are victims of commercial sexual exploitation, including the production of pornography.

Article 7(2). Effective and time-bound measures. Clause (b). Direct assistance for the victims of the worst forms of child labour Child victims of trafficking and commercial sexual exploitation. The Committee notes the Government’s indication that during 2020 a total of 16 specialized mobile protection programmes against commercial sexual exploitation were implemented by the National Service for Minors (SENAME) in the various regions of the country designed to restore the rights of child victims of this practice in all its forms and focussing on compensation for the damage caused, family and social integration and the strengthening of protection capacities. Between 2018 and 2020, a total of 4,307 children victims of commercial sexual exploitation were registered and assisted through these programmes. The Committee also notes the creation by Act No. 21.302 of 2020 of the National Specialized Protection Service for Children and Young Persons. The purpose of the Service is to ensure specialized protection for children who are under serious threat or who have suffered violations of their rights, in the form of a specialized diagnostic, the restoration of rights, compensation for the damages caused and the prevention of further violations. The Committee also notes that, in its concluding observations for Chile in 2021, the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of their Families expressed concern at the overcrowded and unsuitable conditions in the SENAME residences that provide support for children and adolescents who are victims of trafficking in persons (CMW/C/CHL/CO/2, paragraph 59). The Committee notes the measures adopted and encourages the Government to continue its efforts to provide the necessary and appropriate direct assistance for child victims of trafficking in persons and commercial sexual exploitation and to ensure their rehabilitation and social integration. In this connection, the Committee requests the Government to provide information on the number of child victims who have received protection from the National Specialized Protection Service for Children and Young Persons. Finally, the Committee requests the Government to provide detailed information on the impact of the measures adopted.

Clause (d). Children at special risk 1. Street children. In its previous comments, the Committee noted the measures taken by the SENAME to provide direct assistance to street children, return them to their families and reintegrate them in social programmes and it requested the Government to provide information on the impact of these measures. The Committee notes the Government’s indication that between 2018 and 2020 the SENAME maintained specialized protection programmes for children in the streets in the Metropolitana, Del Maule and Los Lagos regions. It also notes that the SENAME identified a total of 547 cases of children and adolescents in the streets in 2018, which were mainly in the regions of Metropolitana, Los Lagos, Valparaíso and Biobío. The Committee once again requests the Government to provide information on the impact of the measures adopted to protect street children from the worst forms of child labour, including information on the number of children who have benefited from the programmes implemented by the SENAME in this respect.

2. Migrant children. The Committee notes the publication by the Subsecretariat of Labour in 2018 of the publication “Qualitative study on child labour and the migrant population”. The factors identified by the study that have an impact on the early entry of children and young persons into the world of work include: the socio-economic conditions of families composed of adults with a low level of schooling; experience of child labour in their countries of origin from a very young age; and a normalized vision of child labour. The Committee also notes the agreements concluded by the Government with neighbouring countries for the protection and safe return of children and adolescents without parental care. The Committee encourages the Government to take measures to prevent children from becoming victims of the worst forms of child labour, including measures to guarantee them access to quality education and knowledge of their rights, and requests it to provide information on the impact of such measures.

Article 8. International cooperation and assistance. In its previous comments, the Committee noted the participation of Chile as a founding member in the Latin America and the Caribbean Free of Child Labour Regional Initiative. The Committee notes that one of the specific actions that has arisen with the participation of Chile in the Initiative is the implementation of the Child Labour Vulnerability Index, which had already been implemented in the various regions of Chile in 2020. The Committee encourages the Government to continue its international cooperation efforts with a view to eliminating the worst forms of child labour and to continue providing information on the results achieved.

Article 3(c) of the Convention. Use, procuring or offering of a child for illicit activities. In its previous comments, the Committee referred to the absence of legal provisions penalizing the use, procuring or offering of a child under 18 years of age for illicit activities. The Committee noted the Government’s indication that a Bill had been prepared to amend the Penal Code to provide that the use of children under 18 years of age constitutes an aggravating circumstance. In this respect, the Committee requested the Government to ensure that the Bill covers not only the use, but also the procuring or offering of children under 18 years of age for illicit activities. The Committee notes the Government’s indication that the Bill (Bulletin 10356-07) is being examined by the Chamber of Deputies, and that it only refers to the use, and not to the procuring or offering of children under 18 years of age for illicit activities. The Committee also notes the Government’s indication that, according to the System for the Recording of the Worst Forms of Child Labour, the number of children used for illicit activities was 252 in 2018, 369 in 2019 and 337 in 2020. The Committee once again requests the Government to take the necessary measures to ensure that both the use and the offering or procuring of children under 18 years of age for illicit activities are penalized by the national legislation. The Committee requests the Government to provide information on any progress achieved in this respect in its next report.

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

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee also notes that Chile previously ratified four maritime labour Conventions, which have been denounced following the entry into force for Chile of the MLC, 2006. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2016 entered into force for Chile at the same time as the Convention and that the amendments to the Code approved in 2018 entered into force for Chile on 26 December 2020. The Committee notes the efforts made by the Government and the social partners to give effect to the Convention. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article I of the Convention. General questions of application. Implementing measures. The Committee notes that the Government, in consultation with the social partners and with technical assistance from the Office, carried out a gap analysis to identify the necessary legislative amendments to give effect to the Convention. In this regard, the Committee welcomes the adoption of Act No. 21.376 of 1 October 2021 “aligning the Labour Code to the Maritime Labour Convention of the International Labour Organization”, which will enter into force in April 2022 (Act No. 21.376 of 2021) and highlights the points set out below as necessary measures for achieving the full application of the Convention.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. The Committee notes the Government’s reference to the Shipping Act and the Regulations of section 137 of the Shipping Act (Shipping Act). The Committee recalls that, in accordance with Article II, paragraphs 1(f) and 2, of the Convention, “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which the Convention applies and that, except as expressly provided otherwise, the Convention applies to all seafarers, including seafarers who perform tasks on board without being members of the ship’s crew, such as hotel and catering personnel. The Committee requests the Government to: (i) indicate whether and how the provisions which give effect to the Convention apply to seafarers who are not members of the ship’s crew, such as hotel and catering personnel; and (ii) confirm that all trainee crew members and officers who work on board are considered to be seafarers and enjoy the protection afforded by the Convention.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that: (i) section 131 of the Labour Code provides that the provisions respecting the seafarer’s agreement (contrato de embarco) for officers and crew members do not apply to workers on board “small ships” (naves menores), unless so agreed by the parties; and (ii) other national provisions do not apply, or apply only partially, to small ships, namely ships of 50 gross tonnes or less (section 4 of the Shipping Act). The Committee notes the information provided by the Government regarding the number of ships covered by the Convention. The Committee recalls that the Convention applies to all ships referred to in Article II, paragraph 4, without any limitation as to tonnage, provided that they are not excluded under Article II, paragraph 1(i). The Committee requests the Government to indicate the measures taken to apply the provisions of the Convention with respect to all ships covered by the Convention, including the “small ships” defined in section 4 of the Shipping Act. The Committee also requests the Government to provide detailed information on the number of ships flying the Chilean flag, distinguishing between the various existing categories.

Article V. Implementation and enforcement. The Committee notes the Government’s indication that DIRECTEMAR has been appointed as the competent authority for the MLC, 2006, for a period of five years. Recalling that Article V, paragraph 6, requires that each Member shall prohibit violations of the requirements of this Convention and establish sanctions or require the adoption of corrective measures, the Committee requests the Government to indicate the measures adopted in this respect.

Regulation 1.1 and Standard A1.1, paragraphs 1 and 4. Minimum age. Hazardous types of work. The Committee notes the Government’s indication that the legislation in force does not permit the recruitment or work on board ship of persons under 18 years of age. In this respect, section 4(A)(4) of Decree No. 1 of 2021 of the Ministry of Labour and Social Welfare classifies as hazardous work prohibited for persons under the age of 18 work performed on board ships or craft at sea, in rivers or lakes. The Committee notes that the Training Regulations do not specify an age requirement for trainee seafarers when they are on board ship. The Committee recalls that trainees are considered seafarers under the terms of the Convention (see Article II). The Committee requests the Government to indicate the minimum age for trainee seafarers on board ship and, if that age is below 18 years, to indicate how effect is given to Standard A1.1, paragraph 4, with respect to these persons.

Regulation 1.2 and the Code. Medical certificate. The Committee notes that seafarers’ medical certificates are valid for two years (section 43 of the Training Regulations). Referring to its comments on trainee seafarers under Article II, the Committee recalls that for young persons under the age of 18, the maximum period of validity of the medical certificate shall be one year. The Committee requests the Government to indicate the manner in which effect is given to Regulation 1.2 and Standard A1.2 with respect to trainee seafarers.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate. Right to a further examination. The Committee notes that the model medical certificates annexed to the Training Regulations and the model medical certificate provided by the Government indicate that the persons who sign the certificate confirm that they have been informed of their right to request a revision of the certificate in accordance with the regulations in force. The Committee notes, however, that the Training Regulations do not establish clearly the right to a revision of the medical certificate or provide that the further examination shall be conducted by another independent medical practitioner or medical referee. The Committee requests the Government to indicate the measures adopted to give full effect to Standard A1.2, paragraph 5.

Regulation 1.2 and Standard A1.2, paragraph 6. Medical certificate. Nature of the medical examination. The Committee notes that the model medical certificate for small ships annexed to the Training Regulations does not include an examination of colour vision or establish that “the seafarer concerned is not suffering from any medical condition likely to be aggravated by service at sea or to render the seafarer unfit for such service or to endanger the health of other persons on board”, which is not in conformity with Standard A1.2, paragraph 6. Referring to its comments under Article II, paragraph 4, the Committee requests the Government to indicate the measures adopted to give effect to Standard A1.2, paragraph 6, with respect to the small ships covered by the Convention.

Regulation 1.2 and Standard A1.2, paragraph 8. Medical certificate. Period of validity. Exceptions. The Committee requests the Government to indicate the provisions that give effect to Standard A1.2, paragraph 8.

Regulation 1.4 and the Code. Recruitment and placement. The Committee notes the Government’s indication that there are no private recruitment and placement services for seafarers in the country, nor any applicable regulations. The Committee requests the Government to provide information on any developments regarding the existence of private recruitment and placement services for seafarers based in Chile. It also requests the Government to indicate how seafarers working on board Chilean vessels are recruited.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of the seafarer and the shipowner or a representative of the shipowner. The Committee notes that the Government refers to sections 9, 98 and 102 of the Labour Code. The Committee notes that it is not clear from the provisions cited whether they give full effect to Standard A2.1, paragraph 1(a). The Committee requests the Government to confirm that all seafarers working on ships that fly the Chilean flag must have a seafarers’ employment agreement in writing signed by both the seafarer and the shipowner (or a representative).

Regulation 2.1 and Standard A2.1, paragraphs 5 and 6. Seafarers’ employment agreements. Termination of the agreement. Minimum notice periods. The Committee notes that the provisions of the Labour Code (sections 159 et seq.) respecting the termination of the labour contract, referred to by the Government, do not establish minimum notice periods for the termination of a seafarers’ employment agreement in accordance with the requirements of Standard A2.1, paragraph 5, nor do they take into account the specific characteristics of the work of seafarers and do not therefore give full effect to the Convention. The Committee requests the Government to indicate the measures adopted or envisaged to give full effect to Standard A2.1, paragraph 5.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreements. Termination of the agreement. Shorter notice period for urgent reasons. The Committee notes that, with regard to the requirement for shorter notice periods for urgent reasons, the Government refers to section 121 of the Labour Code, which provides for cases in which the employment contract may be terminated earlier with or without notice when the period of the contract has expired. The Committee requests the Government to indicate the manner in which, in accordance with Standard A2.1, paragraph 6, account has been taken of the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreements. Record of employment. The Committee requests the Government to provide information on the measures adopted to give effect to Standard A2.1, paragraphs 1(e) and 3.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreements. Content. The Committee notes that the Government refers to section 10 of the Labour Code and section 103, as amended by Act No. 21.376, as reflecting the requirements of Standard A2.1, paragraph 4. However, the Committee observes that neither the Labour Code nor the provisions of Act No. 21.376 appear to give effect to Standard A2.1, paragraph 4(g) (conditions for the termination of the employment agreement) and (j) (reference to the collective bargaining agreement). The Committee requests the Government to indicate the manner in which effect is given to Standard A2.1, paragraph 4(g) and (j).

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7, and A2.2, paragraph 7. Seafarers’ employment agreement and wages. Captivity as a result of acts of piracy or armed robbery against ships. With reference to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined in the national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above questions, indicating in each case the applicable national provisions.

Regulation 2.2 and the Code. Wages. The Committee notes that section 128 of the Labour Code, as amended by Act No. 21.376, provides that: (i) in no case may a remuneration time unit exceed one month; and (ii) in the case of ships engaged in voyages which include a foreign port or ports of call on their route, the shipowner shall ensure that the personnel on board have appropriate means to transfer all or part of their earnings at such time and to whomsoever they see fit. While noting these provisions, the Committee recalls that Standard A2.2, paragraph 4, applies to all seafarers, without distinction as to the type of voyage undertaken by the ships on which they work. The Committee therefore requests the Government to indicate: (i) the manner in which effect is given to this Standard with respect to all ships and seafarers covered by the Convention; and (ii) the measures giving effect to Standard A2.2, paragraphs 2 (requirement to give seafarers a monthly account of the payments due and the amounts paid) and 5 (reasonable charges for transfers and rate of currency exchange not unfavourable to the seafarer).

Regulation 2.3 and Standard A2.3. Hours of work and hours of rest. Limits. The Committee notes that the Government refers in this respect to section 106 of the Labour Code, as amended by Act No. 21,376. While noting that section 116, as amended, is in accordance with Standard A2.3, paragraphs 2, 5, 7 and 14, of the Convention, the Committee observes that section 108 of the Labour Code provides that: “Section 106 shall not apply to the ship’s master, or to whomsoever replaces the master, whose duties shall be deemed to be continuous and sustained as long as she or he remains on board. Nor shall this provision apply to the chief engineer, commissioner, medical doctor, telegrapher responsible for the radio transmitter and any other officer who, in accordance with the regulations on work on board, serves as the chief of a department or service on the ship and who, in that capacity, is required to supervise the regular and overtime work of subordinates.” The Committee notes that Decree No. 26 of 1987 of the Ministry of Labour and Social Welfare (Regulations on work on board ships of the national merchant navy) contains similar provisions (sections 78 and 84), as well as other provisions that are not in accordance with the Convention, such as section 81 (possibility of agreeing to overtime without being subject to maximum hours of work) and section 83 (absence of compensatory rest in case of errors). While noting that Decree No. 26 will be amended soon as a result of the adoption of Act No. 21,376, the Committee recalls that the whole of the MLC, 2006, including Regulation 2.3 and the Code, applies to all seafarers, as defined in Article II, paragraph 1(f) of the Convention. This definition includes all the categories of seafarers referred to in section 108 of the Labour Code. The Committee requests the Government to indicate the measures adopted to give full effect to Regulation 2.3 and Standard A2.3 and to ensure that these provisions apply to all the seafarers covered by the Convention.

Regulation 2.3 and Standard A2.3, paragraphs 10 and 12. Hours of work and hours of rest. Shipboard working arrangements. Records. The Committee notes that the Government refers to section 115 of the Labour Code. The Committee recalls that Standard A2.3, paragraph 12, provides that records of seafarers’ daily hours of work or of their daily hours of rest shall be maintained in a standardized format established by the competent authority, taking into account any available ILO guidelines. It further provides that seafarers shall receive a copy of the records pertaining to them, which shall be endorsed by the master, or a person authorized by the master, and by the seafarers. The Committee requests the Government to indicate the measures adopted to give full effect to Standard A2.3, paragraph 12. The Committee notes that the Decision of 29 January 1990 of the Department of Labour setting out requirements and regulating the procedure for the establishment of an optional attendance and timekeeping system for workers engaged on board, gives full effect to Standard A2.3, paragraph 12, for the ships to which it applies. The Committee requests the Government to specify the manner in which the Decision of 29 January 1990 of the Department of Labour is given effect in practice.

Regulation 2.4, paragraph 2. Entitlement to leave. Shore leave. The Committee requests the Government to indicate the measures adopted to ensure that seafarers are granted shore leave to benefit their health and well-being consistent with the operational requirements of their positions.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition of any agreement to forgo the minimum annual leave with pay. The Committee notes that section 73 of the Labour Code, to which the Government refers, provides that annual leave (section 67) shall not be replaced by a cash payment, without providing that any agreement to forgo the minimum annual leave with pay shall be prohibited. The Committee requests the Government to indicate the measures adopted to give full effect to Standard A2.4, paragraph 3.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee observes that the legislation referred to by the Government does not give full effect to the requirements of Regulation 3.1 and Standard A3.1. In particular, although Decree No. 594 of 2000 of the Ministry of Health (Regulations on basic health and environmental conditions in workplaces) may give partial effect to some of the requirements of Standard A3.1, it is not adapted to the specific characteristics of work on board ships. The Committee recalls that Standard A3.1 provides that each Member shall adopt laws and regulations requiring that ships that fly its flag: (a) meet the minimum standards set out in paragraphs 6 to 17 of the Standard in respect of accommodation and recreational facilities on board ship; and (b) are inspected to ensure initial and ongoing compliance with those standards, in conformity with Standard A3.1, paragraph 18 (frequent inspections to be carried out on board ships by or under the authority of the master). The Committee requests the Government to indicate the measures adopted to give full effect to Regulation 3.1 and to the detailed requirements of Standard A3.1.

Regulation 3.2 and Standard A3.2, paragraphs 1 and 2. Food and catering. Minimum standards. The Committee notes the Government’s reference to Supplementary Directive No. 2/2019 with respect to compliance with the MLC, 2006 (Supplementary Directive No. 2/2019) which, although it covers the requirements of Regulation 3.2 and the Code, is limited in scope, as it contains directives for shipowners of international seagoing vessels of 50 gross tonnes or over on drawing up the Declaration of Maritime Labour Compliance (DMLC), Part II. Supplementary Directive No. 2/2019 also refers to Decree No. 977 of 1997 of the Ministry of Health approving the Food Safety Regulations which, if applicable, would only give partial effect to Standard A3.2, paragraph 2(c). The Committee recalls that Regulation 3.2 and Standard A3.2, paragraphs 1 and 2, provide that each Member shall adopt laws and regulations or other measures to provide minimum standards for the quantity and quality of food and drinking water and for catering. The Committee requests the Government to indicate the measures adopted to give effect to Regulation 3.2 and Standard A3.2, paragraphs 1 and 2, in respect of all ships covered by the Convention.

Regulation 3.2 and Standard A3.2, paragraphs 2(c), 3 and 4. Food and catering. Training. The Committee observes that, in accordance with Decision No. 12620/01/515 of the Directorate-General of the Maritime Territory and Merchant Navy (DGTM and MM), to which the Government refers, the international course for the ships’ cooks certification shall be obligatory for persons who will be employed as cooks on board merchant ships engaged on international voyages. The Committee recalls that Regulation 3.2 and Standard A3.2 apply to all ships covered by the Convention, including those engaged on national voyages, and that all ships operating with a prescribed manning of ten or more shall carry a fully qualified cook (Standard A3.2, paragraph 5). The Committee requests the Government to indicate the measures adopted to give full effect to Standard A3.2, paragraphs 3 and 4, with regard to all ships flying the Chilean flag covered by the Convention.

Regulation 4.1 and Standard A4.1, paragraph 4(b). Medical care on board ship and ashore. Minimum requirements. Qualified medical doctor on board ship. The Committee notes that sections 49 to 51 of the Regulations on work on board ships of the national merchant navy relate to the medical doctor on board ship. The Committee requests the Government to indicate the provisions that give effect to Standard A4.1, paragraph 4 (b), which requires that ships carrying 100 or more persons and ordinarily engaged on international voyages of more than three days’ duration shall carry a qualified medical doctor.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board ship and ashore. Minimum requirements. Medical advice by radio or satellite. The Committee notes the Government’s indication that Decree No. 392 of the Ministry of National Defence (General Regulations on the maritime mobile radiocommunications service), inter alia, covers the requirements set out in the Convention. Observing that the Regulations do not apply to radiocommunications on board small ships, the Committee refers to its comments in relation to Article II, paragraphs 1(i) and 4. The Committee also observes that the Annex to the Regulations provides that medical assistance messages shall be free of charge where there is an imminent risk to life. The Committee recalls that Standard A4.1, paragraph 4(d), provides that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, shall be available free of charge to all ships irrespective of the flag that they fly. The Committee requests the Government to indicate the measures adopted to give full effect to Standard A4.1, paragraph 4(d), and to confirm that the system of medical advice by radio or satellite communication is available free of charge at any time of the day or night to ships at sea.

Regulation 4.2 and Standard A4.2.1. Shipowners’ liability. Minimum standards. The Committee notes that the Government refers in this respect to Supplementary Directive No. 2/2019 which, as noted above, is limited in scope as it contains directives for the shipowners of ships engaged in international shipping of 500 gross tonnes or on drawing up the DMLC, Part II. The Committee recalls that Standard A4.2.1, paragraph 1, provides for the adoption of laws and regulations requiring that shipowners of ships that fly the Member’s flag are responsible for health protection and medical care of all seafarers working on board the ships in accordance with the minimum standards provided for in paragraphs 1, 3 and 7 of the Standard, with the possible limitations and exemptions envisaged in paragraphs 2 and 4 to 6. The Committee requests the Government to indicate the measures adopted to give effect to Standard A4.2.1, paragraphs 1 to 7.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that provisions have not been adopted to give effect to the requirements of the 2014 amendments to the Code of the Convention. Recalling that such provisions require the adoption of laws and regulations, the Committee requests the Government to indicate the measures adopted to give effect to Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government refers to generally applicable provisions respecting health and safety at the workplace. The Committee also notes that Supplementary Directive No. 2/2019 refers to the general obligations of shipowners in respect of health and safety and accident prevention, as well as to provisions of the laws referred to by the Government. The Committee recalls that Regulation 4.3, paragraph 3, requires each Member to adopt laws and regulations and other measures addressing the matters specified in the Code, taking into account relevant international instruments, and set standards for occupational safety and health protection and accident prevention on ships that fly its flag. The Committee requests the Government to indicate the specific legislative provisions and other measures that give effect to Regulation 4.3, paragraph 3, and to the detailed requirements of Standard A4.3. The Committee also requests the Government to provide information on the national guidelines for the management of occupational safety and health on board ships that are to be adopted after consultation with representative shipowners' and seafarers' organizations (Regulation A4.3, paragraph 2).

Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship's safety committee. The Committee notes that the Government refers to section 14 of the Regulations on occupational safety and health management in work or services, which provides that in any industry or work in which over 25 persons are engaged, there shall be one or more joint health and safety committees. The same provision is referred to in Supplementary Directive No. 2/2019. The Committee recalls that Standard A4.3, paragraph 2(d), provides that a ship’s safety committee shall be established on board a ship on which there are five or more seafarers. The Committee requests the Government to indicate the measures adopted to give full effect to this requirement of the Convention.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee notes the Government’s indication that no information is available on this point. The Committee recalls that each Member shall promote the development of welfare facilities in appropriate ports of the country and determine, after consultation with the shipowners’ and seafarers’ organizations concerned, which ports are to be regarded as appropriate. The Committee requests the Government to indicate the measures adopted to give effect to Regulation 4.4 and Standard A4.4.

Regulation 4.5 and the Code. Social security. The Committee notes the Government’s indication that no information is available on this point. The Committee notes that, in accordance with Standard A4.5, paragraphs 2 and 10, the Government specified the following social security branches: sickness benefit, unemployment benefit, employment injury benefit, and maternity benefit. The Committee requests the Government to indicate the measures adopted to provide social security protection in the branches specified to all seafarers ordinarily resident in Chile, as well as to their dependants, that is no less favourable than that enjoyed by shoreworkers (Regulation 4.5, paragraph 3, and Standard A4.5, paragraph 3). The Committee also requests the Government to provide information on the effect given to the requirements of Standard A4.5, paragraphs 4 to 9.

Regulation 5.1.1 and the Code. Flag State responsibilities. General principles. The Committee notes the Government's indication that the flag State ship inspection and certification procedures are carried out in accordance with the provisions of Supreme Decree No. 248 of 5 July 2004 (Regulations on the survey of seagoing ships and craft) and are in conformity with the International Maritime Organization (IMO) Survey Guidelines. In this regard, the Government refers to the DIRECTEMAR Circular, Decision No. O-73/006, which provides guidelines for issuing safety certificates to large merchant ships flying the national flag, under the Harmonized System of Survey and Certification (HSSC). The Committee notes that the IMO Conventions do not cover the aspects regulated by the MLC, 2006, and that the provisions referred to by the Government do not appear to give effect to Regulation 5.1.1, which provides that each Member shall establish an effective system for the inspection and certification of maritime labour conditions, in accordance with Regulations 5.1.3 and 5.1.4 ensuring that the working and living conditions for seafarers on ships that fly its flag meet, and continue to meet, the standards in the Convention. The Committee requests the Government to indicate the measures adopted to give effect to Regulation 5.1.1 and the Code.

Regulation 5.1.2 and Standard A5.1.2, paragraph 1. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the information provided by the Government on: (i) the designation of four recognized organizations to carry out inspection functions under the MLC, 2006, in respect of ships that fly the Chilean flag; and (ii) the assessment of the competency of recognized organizations regulated by Resolution No. 12600/544 Vrs. of 16 June 2021 of the Directorate of Maritime Safety and Operations and the Code for Recognized Organizations adopted by Resolution MEPC.237(65). The Committee requests the Government to provide a copy of the agreement authorizing recognized organizations to carry out inspection functions under the MLC, 2006.

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime labour certificate and declaration of maritime labour compliance. The Committee notes the Government’s indication, without specifying the applicable provisions, that the inspection and certification systems established at the national level are those required by Standard A5.1.3, paragraphs 1 to 4. Certificates are issued in accordance with the provisions of the same standard, and the issue of interim certificates is assessed on a case-by-case basis, taking into account Standard A5.1.3, paragraph 5. Currently, all ships that fly the Chilean flag which are subject to the Convention have certificates that are valid for five years, and some already have their intermediate certificates. In terms of the frequency of inspections, the Government refers to the HSSC in relation to IMO Conventions, as set out in the Regulations on the survey of seagoing ships and craft. While noting this information, the Committee requests the Government to indicate the provisions that give effect to: Regulation 5.1.3 and Standard A5.1.3 respecting the cases in which a maritime labour certificate is required; the maximum period of validity (Standard A5.1.3, paragraph 1); the scope of the prior inspection; the requirements for an intermediate inspection (Standard A5.1.3, paragraph 2); the provisions respecting the renewal of the certificate (Standard A5.1.3, paragraphs 3 and 4); the cases in which a maritime labour certificate may be issued on an interim basis, as well as the maximum period of validity and scope of the inspection (Standard A5.1.3, paragraphs 5 to 8); the cases in which a maritime labour certificate shall cease to be valid (Standard A5.1.3, paragraphs 14 and 15) and in which a maritime labour certificate shall be withdrawn (Standard A5.1.3, paragraphs 16 and 17); and requirements for posting the maritime labour certificate and declaration of maritime labour compliance on the ship and making them available for review (Regulation 5.1.3, paragraph 6, and Standard A5.1.3, paragraphs 12 and 13).

Regulation 5.1.3 and the Code. Flag State responsibilities. Maritime labour certificate and declaration of maritime labour compliance. Documents to be carried on board. The Committee notes that the copy of the DMLC, Part I, provided by the Government refers to the legislation (for example, the Labour Code), without specifying the relevant provisions or providing concise information on their content. The Committee recalls that, in accordance with Standard A5.1.3, paragraph 10, Part I of the DMLC shall identify the national requirements embodying the relevant provisions of the Convention by providing a reference to the relevant national legal provisions, and provide, to the extent necessary, concise information on the main content of the national requirements. The Committee also observes that the DMLC, Part II, provided by the Government, contains general references to other documents. The Committee observes that, in this case, the DMLC, Parts I and II, do not appear to fulfil the objectives set out in the MLC, 2006, that is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to ensure that the national requirements on the 16 listed matters are being properly met on board a ship. The Committee requests the Government to amend the DMLC, Part I, in accordance with the Convention, and to provide a copy with its next report. It also requests the Government to provide other examples of an approved DMLC, Part II, that gives effect to paragraph 10(b) of Standard A5.1.3.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that the Government refers to the HSSC system regulated by the Regulations on the survey of seagoing ships and craft, and to Directive No. O-72/014 of the Directorate-General of the Maritime Territory and Merchant Navy establishing the procedure and instructions for the recruitment, appointment and professional duties of ship inspectors. The Committee observes that the scope of the inspections covered by Regulation 5.1.4 differs from those relating to IMO Conventions. The Committee recalls that, in accordance with Standard A5.1.4, each Member shall maintain a system of inspection of the conditions for seafarers on ships that fly its flag which shall include verification that the measures relating to working and living conditions as set out in the DMLC, where applicable, are being followed, and that the requirements of the Convention are met. Inspections must cover all the ships to which the Convention applies and take place at least every three years. The Committee requests the Government to indicate the measures adopted to meet the requirements of Regulation 5.1.4 and Standard A5.1.4, and to specify in particular the manner in which it is ensured that inspectors have the training, competence, terms of reference, powers, status and independence necessary or desirable so as to enable them to carry out their duties (Standard A4.1.5, paragraph 3), as well as the procedures followed to receive and investigate complaints (Standard A5.1.4, paragraph 5).

Regulation 5.1.5 and the Code. Flag State responsibilities. On-board complaint procedures. The Committee notes that the Government refers to Supplementary Directive No. 2/2019 governing on-board complaint procedures and provides the respective form. The Committee observes that: (i) this procedure only applies to ships engaged on international voyages; (ii) the form only permits a complaint to be filed with the Chilean authorities; and (iii) there is no requirement to provide seafarers with a copy of the on-board complaint procedures (Standard A5.1.5, paragraph 4). The Committee requests the Government to indicate the measures adopted to give full effect to Regulation 5.1.5 and Standard A5.1.5 in respect of all ships covered by the Convention. It also requests the Government to indicate the provisions that prohibit and penalize any kind of victimization of a seafarer for filing a complaint, with a summary of their content (Regulation 5.1.5, paragraph 2).

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes the Government’s indication that Port State inspectors have been instructed that, during their presence on the ships that they are inspecting, they shall be attentive to receiving orally any complaints made by seafarers against the master or the shipowner for failure to comply with any provisions of the Convention. The Committee recalls that Standard A5.2.2 sets out the requirements for onshore complaint-handling procedures, which include, where appropriate, the notification of the flag State seeking a corrective plan of action (Standard A5.2.2, paragraph 5) and the transmission of a copy of the report on complaints that have not been resolved to the Director-General of the ILO and the appropriate shipowners’ and seafarers’ organizations in the port State (Standard A5.2.2, paragraph 6). The Committee requests the Government to provide detailed information on the measures adopted to give effect to the requirements of Standard A5.2.2.

[The Government is asked to reply in full to the present comments in 2024.]

The Committee takes note of the Government’s report and supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Article 17 of the Convention. Enforcement of any regulations prescribed for the protection of the workers against accidents. The Committee notes the detailed information provided by the Government regarding the legislative and regulatory framework which implements the provisions of the Convention. The Government indicates, in this respect, the examination of a number of proposed legislative amendments related to the management of ports formulated by the Port Labour Council, a body for dialogue and proposals established in January 2019 and composed of stakeholders in the port sector. The Committee also notes the various Government initiatives related to safety and health in port handling processes, including the development of a specific guide for ports in the context of the occupational disease recognition exercise of the Social Security Superintendence Authority (SUSESO); a regulation on port labour that defines, inter alia, the obligations of public port enterprises and private enterprises to implement an occupational safety and health management system; and the training of facilitators of the joint committees for port safety and health. The Committee requests the Government to continue providing information on any new text and regulation set out for the protection of port workers against accidents.

Part V of the report form. Application in practice. The Committee takes note of the statistical information provided by the Government relating to inspections carried out between 2017 and 2019. The Committee requests the Government to continue to provide information on the application of the Convention, in particular, when available, information on the number and nature of violations reported and the resulting action taken, and the number and nature of occupational accidents and diseases reported.

Prospects for the ratification of the most up-to-date Convention. Further to its previous comments, the Committee takes note that the Government reaffirmed its intention to submit to the Tripartite Commission established pursuant to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) the Governing Body’s invitation to consider ratifying the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152). In addition, the Government indicates having availed itself of the Office’s technical assistance in January 2020 for the examination of any legislative gaps. The Committee invites the Government to provide information on any developments towards the ratification of Convention No. 152.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing. In its previous comment, the Committee noted that Act No. 20940 introduced a new requirement for the establishment of trade unions in enterprises with 50 or fewer workers, adding to the current requirement of at least eight workers an additional requirement to represent a minimum of 50 per cent of the total number of workers (section 227 of the Labour Code). The Committee noted the allegations by the General Confederation of Public and Private Sector Workers (CGPT) that this new requirement makes it difficult to establish trade unions and considers that it will result in the disappearance of trade unions in many workplaces. The Committee notes that the Government has not responded to its request to reply to the CGTP’s observations and that the CGTP and the Confederation of Copper Workers (CTC) once again denounce the fact that the additional requirement that has been introduced makes the establishment of workers’ organizations difficult. The Committee once again requests the Government to provide its comments on the observations of the social partners, as well as practical information on the impact of this new requirement for the establishment of unions in enterprises with 50 or fewer workers.

Article 3. Right of organizations to organize their activities and to formulate their programmes. In its previous comments, the Committee requested the adoption of measures to amend and/or provide information on the application of the various sections of the Labour Code relating to the exercise of the right to strike:

Strike ballots. Section 350 of the Labour Code requires an absolute majority of workers represented by the union for a strike ballot (although workers are not counted in the voting quorum if they are not currently working in the enterprise due to medical leave or a statutory holiday, or those who, due to the requirements of the enterprise, are not in the usual place of work). While noting that the Government has not provided any information on this subject, the Committee once again recalls that, so as not to unduly limit the right of workers’ organizations to organize their activities, the legislative provisions requiring a vote by workers before a strike should ensure that account is taken only of the votes cast (and not of all workers who are entitled to vote), and that the required quorum or majority are fixed at a reasonable level. The Committee once again requests the Government to take the necessary measures in this regard and to report any developments.

Date of the commencement of a strike. In its previous comment, the Committee noted that section 350 of the Labour Code provides that the strike shall be carried out as from the fifth day of its approval. The Committee notes that, in response to its request for clarifications on the implications of this provision, the Government provides an opinion issued by the Directorate for Labour (No. 441/7 of 25 January 2017), indicating that this period is a waiting period between the strike ballot and the effective commencement of the strike, and that it may be subject to an extension of five additional days for the purpose of compulsory mediation. The Committee also notes that various social partners challenge this provision on the grounds that it imposes an excessive period of notice which limits the exercise of the right to strike. Recalling that, although it is possible to establish a brief period for reflection or mediation, the decision on the date of the commencement of a strike should be left to the workers, the Committee requests the Government to reply to the observations of the social partners and to provide further information on the application of this provision in practice, and particularly to indicate the consequences or obligations on the union in the event that it wishes to commence a strike on a date other than the one imposed by section 350 of the Labour Code.

Resumption of work. Section 363 of the Labour Code provides that, in the event of a strike or temporary closure of the enterprise which, by reason of its nature, timing or duration, causes a serious risk to health, the environment, the supply of goods or services to the population, the national economy or national security, the respective Labour Tribunal may order the resumption of work, upon the application of one of the parties. In its previous comments, the Committee noted with interest the attribution to the judicial authorities of decisions concerning the resumption of work, and recalled that the resumption of work may only be ordered in cases of acute national crisis or where the interruption of the services would endanger the life, personal safety or health of the whole or part of the population, and that in such cases workers should enjoy adequate compensatory guarantees, such as conciliation and mediation procedures and, in the event of deadlock, arbitration machinery, which should have the confidence of the parties. The Committee notes the Government’s indication that there have so far been no legal rulings in this regard (since the entry into force of this new provision in 2017, there has only been one court application for the resumption of work which, although it was upheld by the court, was not applied in practice, as during the time given for the implementation of the order the parties agreed to end the strike). In this regard, the Government considers that the procedure requiring the application to be examined by the courts has limited the effectiveness of the provision, as applications to the courts are decided when the strike has already ended. The Committee requests the Government to continue providing information on the application of this provision in practice, with an indication in particular of the situations concerned and the services affected by the resumption of work. It also requests the Government to reply to the observations of the social partners on this subject, and to indicate the compensatory guarantees envisaged for workers who may be affected.

Seasonal agricultural workers. In its previous comments, the Committee requested that the right to strike also be guaranteed for agricultural workers, as a category of workers with special contractual arrangements (Title II, Book I, of the Labour Code). The Committee previously noted the Government’s indications that: agricultural workers were regulated by general provisions and had the right to strike under the same terms as other workers; and only seasonal agricultural workers are not guaranteed the effective enjoyment of this right under the law. The Committee notes that the Government has not provided any information in reply to its request to ensure that these workers too can exercise the right to strike. The Committee is once again bound to recall that seasonal agricultural workers do not fall into any of the categories for which the right to strike may be restricted (essential services in the strict sense of the term or public servants exercising authority in the name of the State). The Committee requests the Government to take the necessary measures to ensure in law and practice that seasonal agricultural workers can enjoy the right to strike in the same way as other workers. The Committee requests the Government to provide information in this regard.

Application of the Convention in practice. The Committee notes that the CGPT once again alleges in its observations that the courts have denied the capacity of the trade union to represent its members, for example in relation to breaches of a collective agreement or that, on occasion, they require a written mandate from every worker member. The Committee notes that the CTC raises the same issue and indicates that it has not been resolved. The Committee once again requests the Government to provide its comments on this subject and to take any measures that are necessary to ensure that the unions are able to represent their members in judicial proceedings.

The Committee also notes that several of the observations by workers’ organizations once again indicate that the labour reform has facilitated interference by employers in trade union affairs, through the amendment of section 297 of the Labour Code to provide that the employer may submit a reasoned request for the dissolution of a trade union for serious non-compliance with the obligations imposed by law or for no longer complying with the requirements for its establishment (as substantiated by a ruling of the Labour Tribunal). In this regard, the Committee notes the Government’s indication that, between 2014 and 2018, a total of 14 applications were made by employers to the Directorate of Labour for the dissolution of unions and that, of these requests, only five would be viable under the current wording of section 297 of the Labour Code, and that it is not therefore possible to observe a considerable increase in the number of such applications. While taking due note of this information, the Committee requests the Government to continue providing information on the effect given to this provision in practice, and particularly on the judicial procedures initiated by the Directorate for Labour through labour tribunals at the instigation of employers.

The Committee notes the observations of various social partners alleging that the system for the determination of minimum services undermines in practice the effective exercise of the right to strike: (i) they consider that bilateral involvement is not respected in the determination of minimum services, nor is there respect for the independence that must be shown by bodies making such decisions; (ii) they indicate that enterprises are allowed to submit requests for minimum services outside the time limits, in the hope of receiving a proposal for a collective measure to delay or prevent the strike and collective bargaining, and that the authorities take more time to decide on applications for minimum services than the period set out in the law (180 days), with this period being extended in practice to around 14 or 15 months; (iii) they allege a lack of legal consideration in the determination of minimum services and emphasize that in certain cases enterprises providing non essential services (for example those handling food) have succeeded in obtaining minimum services covering over 70 per cent of the personnel; and (iv) they report the introduction of new draft legislation intended to “modernize current labour institutions” which would broaden the cases in which minimum services can be established, including criteria such as the needs of living species and the provision of food, with a view to covering supermarkets and enterprises engaged in raising livestock or fish farming. The Committee requests the Government to provide its comments in this regard, including information on any minimum services covering over 50 per cent of the personnel that have been recorded.

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 with regard to the application of the Convention. In this respect, the Committee welcomes the measures indicated by the Government with a view to extending the mandates of trade union executives during the state of emergency (with the possibility for the organizations to elect their representatives if they considered that the conditions existed for holding elections), and to ensuring that workers engaged in telework are informed of the existence of unions in the enterprise, and other measures to facilitate the action and consultation of workers’ organizations on measures related to the pandemic, such as their participation in agreements for the reduction of working hours as a consequence of the health emergency, and their capacity to defend their members in the event of any flaws in the suspension of employment relations.

The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 15 September 2020, alleging the violent repression of the protest against an anti-union reform at the end of 2019, including the temporary detention and injuries suffered by various trade union leaders, as well as the attempt to break into the headquarters of the Single Central Organization of Workers of Chile (CUT). The Committee also notes the observations of the CUT, received on 6 October 2020, also alleging limitations on the exercise of the right to demonstrate and on trade union activities, and the arbitrary and unjustified detention of 24 trade union leaders in several cities, as well as the death of a trade union leader of artisanal fishers (challenging the official version of suicide as the cause of his death), raids on and attempts to enter trade union premises (in particular the CUT headquarters, also alleged by ITUC), and spying on and monitoring trade union leaders. The Committee requests the Government to provide its comments on these serious allegations.

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: (i) decided not to refer the matter to a Commission of Inquiry and to close the procedure under article 26; and (ii) 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 previous comments adopted in 2019 and reproduced below.

The Committee notes the observations on the application of the Convention in law and practice (including allegations of violations in the public, food, transport and copper sectors) provided by the following organizations: the National Association of Fiscal Employees (ANEF), received on 29 August 2019; 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; as well as the observations of the Federation of Workers’ Unions of Chile (FESINTRACH), received on 2 September 2019, the No. 1 Promoter CMR Falabella Enterprise Union, received on 20 September 2019, and the Single Central Organization of Workers of Chile (CUT), received on 26 October 2019. The Committee requests the Government to provide its comments in this regard. Noting that the Government has not replied to the various requests made in its previous comments, including with regard to the multiple observations made by social partners in 2016, the Committee trusts that it will receive the missing information in the next report.

Articles 2 and 3 of the Convention. Legislative matters not covered by the reform of the Labour Code. In its previous comment, while noting with satisfaction the amendment or repeal of various provisions of the Labour Code which were not in conformity with the Convention, the Committee observed that the following provisions had not yet been brought into conformity with the Convention:

-Amendment of article 23 of the Political Constitution, which provides that the holding of trade union office is incompatible with active membership of a political party and that the law shall establish penalties for trade union officials who engage in party political activities. In its previous comments, the Committee welcomed the submission of a draft constitutional amendment in October 2014 to remove these restrictions, but noted that the draft had not been approved.
-Amendment of section 48 of Act No. 19296, which grants broad powers to the Directorate for Labour for the supervision of the accounts and financial assets and property of associations. In its previous comment, the Committee noted the Government’s indication that the approach adopted by the Directorate for Labour in that regard is consistent with the principles of freedom of association and leaves it to organizations to control their own accounts, financial assets and property; and that a protocol agreement had been agreed between the Government and the public sector round-table of 2014 which included the commitment to address possible amendments to Act No. 19296.
-Repeal of section 11 of Act No. 12927 on the internal security of the State, which provides that an interruption or strike in certain services may be penalized with imprisonment or banishment, and the amendment of section 254 of the Penal Code, which establishes criminal penalties in the event of the interruption of public services or public utilities or dereliction of duty by public employees. In its previous observation, the Committee noted the Government’s indication that these provisions had not been applied and recalled that no penal sanction should be imposed on a worker for participating peacefully in a strike, which is merely exercising an essential right, and therefore that sentences of imprisonment or fines should not be imposed.

The Committee observes that in its latest report the Government has not provided any further information on the application, amendment or repeal of these provisions, and that the observations of the various social partners continue to denounce the incompatibility of these provisions with the Convention. The Committee once again expresses the hope that the Government will take the necessary measures in the very near future to bring these provisions into conformity with the Convention and requests it to report any developments in this regard.

Article 3. Right of organizations to organize their activities and to formulate their programmes. Exclusion from strike action of enterprises declared to be strategic. Section 362 of the Labour Code, under the heading of the determination of enterprises in which the right to strike may not be exercised, provides that a strike may not be called for workers providing services in corporations or enterprises, irrespective of their nature, purpose or function, which provide services of public utility or the cessation of which would cause serious damage to health, the national economy, the provision of supplies to the population or national security. In its previous comment, the Committee recalled that this definition of enterprises in which the right to strike cannot be exercised, to be approved jointly by various ministries and subject to appeal to the Court of Appeal, potentially covers services which go beyond the definition of essential services in the strict sense of the term (those the interruption of which may endanger the life, personal safety or health of the whole or part of the population). Recalling that the prohibition of strikes relating to the services provided should be limited to essential services in the strict sense of the term, the Committee reiterated that the concepts of public utility and of damage to the economy are broader than that of essential services. The Committee also observed that “services of public utility” would already be covered by the system of minimum services established in section 359, which is distinct from the concept of essential services in the strict sense of the term. Observing that the Government has not provided the requested information on the application of this provision in practice, the Committee notes that, according to the indications of the ITUC, under the terms of this provision a list was approved in August 2017 of 100 enterprises considered to be strategic and excluded from the exercise of the right to strike, which include enterprises in the health and energy sectors, and that 14 unions have lodged appeals in this regard with the Court of Appeal. The Committee also notes that in August 2019 a new list was published of enterprises considered to be strategic and excluded from the exercise of the right to strike (43 enterprises were removed from the former list of 100 enterprises, and 15 new enterprises were added). While considering that section 362 of the Labour Code should be amended to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee once again requests the Government to provide information on the application in practice of section 362 of the Labour Code, with an indication of the various categories of services provided by the enterprises excluded from the exercise of the right to strike, and the action taken in relation to any complaints lodged in this respect. The Committee recalls that, without calling into question the right to strike of the large majority of workers, a negotiated minimum service may be established for public services of fundamental importance that are not essential services in the strict sense of the term.

Replacement of workers. In its previous comment, while on the one hand the Committee noted with satisfaction the introduction in the Labour Code of a prohibition to replace striking workers, as well as the sanctions in the event of such a replacement (sections 345, 403 and 407) on the other hand, it noted that, according to the CGTP, other recently introduced provisions could undermine or introduce uncertainty into such prohibition to replace striking workers. The CGTP referred, in particular, to the possibility envisaged in new section 306 of the Labour Code for an enterprise that has subcontracted work or services to another enterprise to carry out directly or through a third party the subcontracted work or services interrupted due to a strike (in this regard, the CGTP alleged that over 50 per cent of workers in the country work in subcontracting enterprises). The Committee requested the Government to provide its comments on the observations of the CGTP and to report on the application in practice of sections 306, 345, 403 and 407, including the sanctions imposed for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on the workers or services interrupted due to a strike. The Committee notes that the Government reports various legal opinions issued by the Directorate for Labour concerning these provisions, including an opinion that it is not in accordance with the law for an enterprise providing temporary services to provide workers to a principal enterprise for the performance of work or services which have been interrupted due to a strike by workers in the enterprise contracted to perform them. The Committee welcomes these clarifications, while noting that the Government has not provided further information on the application in practice of the above-referred provisions. The Committee also notes that the issue of the replacement of workers is the subject of additional observations by the social partners. In this respect, the CTC indicates that section 403 of the Labour Code supports the internal replacement of striking workers, and the CGTP denounces the fact that the authorities have allowed the replacement of striking workers in the public passenger transport sector in Santiago de Chile. The Committee requests the Government to provide its comments on the observations of the social partners on these matters, and to provide further information on the application in practice of sections 306, 345, 403 and 407, including on the sanctions applied for the replacement of striking workers, and on the impact of the hiring of workers under section 306 on striking workers or services interrupted due to a strike.

Exercise of the right to strike beyond the framework of regulated collective bargaining. In previous comments, the Committee noted that, in general terms, the exercise of the right to strike is regulated exclusively within the framework of regulated collective bargaining. In this respect, the Committee referred to the recommendations made to the Government by the Committee on Freedom of Association (CFA), in which: (i) given that existing legislation does not permit strike action outside the context of the collective bargaining process, the CFA requested the Government, in consultation with workers’ and employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of freedom of association (see 367th Report, March 2013, Case No. 2814, paragraph 365); and (ii) recalling the principle that the occupational and economic interests that workers defend through the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the enterprise which are of direct concern to the workers, the CFA requested the Government to take all the necessary measures, including legislative measures if necessary, to uphold this principle, and to submit the legislative aspects of the case to the Committee of Experts (see 371st Report, March 2014, Case No. 2963, paragraph 238).

In this regard, certain social partners (see for example, the observations of the ITUC in 2016, the CGTP in 2016 and 2019, and the CTC in 2019) have been denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining. The Committee also noted that a ruling of 23 October 2015 of the Court of Appeal of Santiago held that the sole fact that the law regulates strike action in one instance, that is in the context of regulated collective bargaining, cannot lead to the conclusion that outside that context strikes are prohibited, based on the understanding that matters that the legislature has failed to regulate or define cannot be held to be prohibited (the Committee refers to other recent rulings along these same lines, such as the ruling by the Labour Court of Antofagasta of 6 August 2019, finding that the right to strike is an essential right regulated by the Convention and that the Supreme Court has found that the right to strike is guaranteed even outside the framework of collective bargaining procedures). In light of the judicial decisions referred to above, the Committee once again requests the Government to provide its comments on the observations of the social partners denouncing the failure to protect the right to strike outside the framework of regulated collective bargaining and to provide information on any measures taken in relation to the recommendations referred to in this regard.

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.

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.

Article 4 of the Convention. Promotion of collective bargaining. Level of collective bargaining. Inter-enterprise unions. In its previous comment, the Committee noted that the labour reform maintains collective bargaining that is binding (“regulated”) at the enterprise level and that at higher levels collective bargaining remains voluntary, and confederations and federations can submit draft collective agreements and initiate negotiations regulated by the Labour Code. The Committee also noted the observations of various workers’ organizations alleging that the industrial relations system does not adequately promote collective bargaining at the different levels, as it gives priority to bargaining at the enterprise level to the detriment of collective bargaining at higher levels, which does not enjoy the same recognized guarantees (the Committee notes that the most recent observations by the General Confederation of Public and Private Sector Workers (CGTP), the Confederation of Copper Workers (CTC), the World Federation of Trade Unions (WFTU) and the Single Central Organization of Workers of Chile (CUT) once again allege that priority is given to enterprise-level bargaining). The Committee notes that the Government, in reply to the Committee, reiterates that confederations and federations can submit draft collective agreements, without being subject to the rules of the regulated collective bargaining process and with the prior agreement of one or more employers or one or more employers’ associations, and emphasizes that this confirms the recognition granted by the legislator in law to voluntary forms of bargaining. The Government also provides statistical data on the negotiations undertaken between 2017 and June 2019 showing that, during this period: (i) a total of 7,372 collective instruments were concluded in the country, covering a total of 975,209 workers; and (ii) of these, inter-enterprise unions concluded 989 collective instruments, covering a total of 173,961 workers.

The Committee also noted in its previous comment the observations of the CGTP indicating that, in accordance with the special collective bargaining system for inter-enterprise unions set out in section 364 of the Labour Code, employers retain the right to refuse to negotiate with inter-enterprise unions in small enterprises (of up to 50 workers which, according to the CGTP, account for over 80 per cent of the enterprises in the country) and that, where an employer so refuses, the Labour Code does not authorize the inter-enterprise union to represent its members. The Committee requested the Government to provide its comments on the CGTP’s observations and to report on the application in practice of the new provisions concerning collective bargaining at the enterprise level by inter-enterprise unions. The Committee notes that the Government refers in response to four legal statements issued by the Directorate for Labour in relation to these provisions (these statements emphasize, for example, that an inter-enterprise union may engage in bargaining through unregulated procedures (with the agreement of the employer) or, in the case of enterprises with over 50 workers, in accordance with the regulated procedure; they add that, if the employer does not notify acceptance or refusal to engage in bargaining with the inter-enterprise union within the time limits, it is understood to have agreed to bargain). The Committee notes that the Government has not replied directly to the observations of the CGTP (which once again raises the matter in its most recent observations, as do the CTC and Federation of Workers Trade Unions of Chile (FESINTRACH)), and that it has not provided information on the impact of the application of section 364 of the Labour Code.

In light of the above, the Committee once again invites the Government to engage in social dialogue with a view to agreeing on solutions to encourage the full development and utilization of collective bargaining procedures at the various levels. The Committee requests the Government to continue providing information on the impact of the labour reform on the exercise of collective bargaining, with comparative data on the number of collective agreements adopted by level and sector, particularly comparing the enterprise level and higher levels, and the number of workers covered. The Committee also requests the Government to provide information on the impact of the application in practice of section 364 of the Labour Code on the choice of the level of organization representing workers in collective bargaining.

Apprentices and occasional and temporary workers and workers engaged for a temporary task or activity. The Committee notes the information provided by the Government on the rules governing collective bargaining for apprentices and occasional and temporary workers and workers engaged on a temporary task or activity, and on the exercise of this right. The statistics provided by the Government show that, between 2017 and June 2019, there were seven bargaining processes covering occasional and temporary workers and workers engaged on a temporary task or activity, and that no union concluded a collective instrument as a result of these processes. Taking due note of this information, the Committee requests the Government to provide information on the measures adopted or envisaged to promote collective bargaining by apprentices and occasional and temporary workers and workers engaged on a temporary task or activity.

Education sector. The Committee also notes that the Committee on Freedom of Association observed that the trade union rights of education assistants are determined in accordance with the system in force for civil servants and it drew attention to the importance of promoting collective bargaining in the education sector within the meaning of Article 4 of the Convention and referred the legislative aspects of the matter to the Committee (see 388th Report, March 2019, Cases Nos 3246 and 3247, paragraph 285). The Committee requests the Government to provide information on the promotion of collective bargaining in the education sector, with particular reference to education assistants and their right to engage in collective bargaining in law and practice.

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). The Committee has examined the application of the Convention on the basis of the supplementary information received from the Government this year, as well as the information at its disposal in 2019.

The Committee also notes the observations of the Single Central Organization of Workers of Chile (CUT-Chile), received on 13 September 2018 and 6 October 2020. The Committee requests the Government to send its replies in this regard.

Tripartism and social dialogue. COVID-19 pandemic. The Committee notes the information provided by the Government in its supplementary report on the measures adopted to promote tripartism and social dialogue in the country. In this regard, the Government refers, among other measures, to the implementation of trade union training projects at the regional level within the framework of the trade union training fund, as well as the establishment of tripartite social dialogue forums at the national and regional levels in which consultations have been held on a broad range of labour issues, such as the regulation of the right to a lunch, the promotion of women’s work in certain sectors, vocational reskilling and the recognition of labour rights to household refuse collectors. However, the Committee notes the allegation by the CUT-Chile that workers’ organizations were not consulted regarding the new labour rules adopted in the context of the health emergency caused by the COVID-19 pandemic, such as: Act No. 21 227 of 6 April 2020 facilitating access to unemployment insurance benefits in exceptional circumstances; Act No. 21 220 of 26 March amending the Labour Code in respect of remote working; and the electronic severance procedure introduced by the Department of Labour. In the context of the global COVID-19 pandemic, the Committee recalls the broad guidance provided by international labour standards. The Committee encourages Member States to engage in broader tripartite consultations and social dialogue as a solid basis for drawing up and implementing effective responses to the deep-rooted socio-economic effects of the pandemic. The Committee invites the Government to provide updated information in its next report on the measures adopted in this respect, in accordance with Article 4 of the Convention and Paragraphs 3 and 4 of Recommendation No. 152, and particularly the measures adopted to build the capacities of constituents and strengthen tripartite mechanisms and procedures, as well as the challenges and good practices identified.

Articles 2 and 5 of the Convention. Effective tripartite consultations. The Committee notes the detailed information provided by the Government on the activities of the Higher Labour Council between 2017 and 1 January 2020. In particular, the Government refers to the holding of tripartite consultations on the possibility of ratifying the Protocol of 2014 to the Forced Labour Convention, 1930. The Government indicates that the Protocol was subsequently submitted to the Chamber of Deputies, where it is awaiting approval for ratification. Communications from the most representative organizations of employers and workers in the maritime sector were also forwarded on the amendments adopted in 2018 to the Maritime Labour Convention, 2006 (MLC, 2006). The Government also reports the establishment of various tripartite sectoral standing commissions, such as the Thematic Commission on Disability and the Thematic Commission on the implementation of the MLC. With regard to the latter, the Government indicates that it prepared an analysis of the national legislation with a view to identifying the necessary legislative adjustments to ensure compliance with the MLC, 2006. The Government once again refers to the organization in 2014, 2015 and 2019 of tripartite consultations within the framework of the Advisory Council on Occupational Safety and Health, as well as various regional tripartite workshops on the development of the National Occupational Safety and Health Policy (PNSST) with a view to giving effect to the provisions of the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187). In this regard, the Government indicates, contrary to the indications made by the Production and Trade Confederation (CPC) in its observations of 1 September 2016, that employers’ organizations were also invited to participate in the tripartite workshops (held on 8 August and 22 July 2014 and 9 March 2015). Moreover, in 2017 and 2018, tripartite consultations and workshops were held, some with ILO collaboration, to draw up the National Occupational Safety and Health Programme, which was finally adopted on 2 February 2018. The Government adds that in April 2019 a new version of the Programme was submitted to the members of the Advisory Council for their views. The Government further reports that, within the working group on dock work, tripartite consultations have been held on the possible ratification of the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152), and that a formal request was made to the Office for technical assistance on 21 January 2020 for the preparation of an analysis of possible legal gaps in the national legislation in this respect.

However, the Government notes the allegation by the CUT-Chile in its observations that, in practice, effective tripartite consultations on labour issues have not been held in the Higher Labour Council, which only operates for information purposes. In this respect, the CUT-Chile alleges that the social partners were not consulted prior to the submission of various international labour standards, some of which have been ratified. In particular, it maintains that tripartite consultations were not held in relation to the following instruments: the Violence and Harassment Convention, 2019 (No. 190), the Work in Fishing Convention, 2007 (No. 188), the Protocol of 2002 to the Occupational Safety and Health Convention, 1981, the Private Employment Agencies Convention, 1997 (No. 181), the Safety and Health in Mines Convention, 1995 (No. 176), the Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992 (No. 173), the Collective Bargaining Convention, 1981 (No. 154), the Rural Workers’ Organisations Convention, 1975 (No. 141), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Labour Inspection Convention, 1947 (No. 81). The CUT-Chile adds that, while the Government has held consultations with the Office concerning the possible denunciation of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), the social partners have not been consulted on this subject. The CUT-Chile also alleges that it did not receive copies of the reports on ratified Conventions, submitted under article 22 of the ILO Constitution sufficiently in advance to be able to comment on them. In this respect, the Committee recalls that, “[i]n order to be ‘effective’, consultations must take place before final decisions are taken, irrespective of the nature or form of the procedures adopted […] The effectiveness of consultations thus presupposes in practice that employers’ and workers’ representatives have all the necessary information far enough in advance to formulate their own opinions” (see the 2000 General Survey on tripartite consultation, paragraph 31). Finally, the Committee notes that the Government has not provided information on the tripartite consultations held on replies to questionnaires concerning items on the agenda of the International Labour Conference, the re-examination at appropriate intervals of unratified Conventions and of Recommendations, and proposals for the denunciation of ratified Conventions (Article 5(1)(a), (b), (c) and (e)). The Committee therefore requests the Government to provide detailed and updated information on the specific content, frequency and outcome of the tripartite consultations held on all the matters relating to international labour standards covered by Article 5(1) of the Convention. Moreover, in light of the observations of the CUT-Chile, the Committee requests the Government to provide information on the consultations held with the social partners on the manner in which the functioning of the procedures required by the Convention could be improved, including the possibility of establishing a schedule for the preparation of reports sufficiently in advance (Article 5(1)(d)).

Article 4(1) and (2) of the Convention. National occupational safety and health (OSH) system. The Committee recalls that the Governing Body approved, in March 2016, the report of the committee set up to examine the representation alleging non-observance by Chile of Convention No. 187, made under article 24 of the ILO Constitution by the College of Teachers of Chile AG (GB.326/INS/15/6). Subsequently, in November 2016, the College of Teachers of Chile AG made a second representation under article 24 of the ILO Constitution, in which it alleged non-observance by Chile of the recommendations relating to several issues raised in the previous representation. In March 2017, the Governing Body, on the recommendation of its Officers, found that the second representation was receivable. It postponed the decision to appoint a tripartite committee to examine the new representation and invited this Committee to examine the allegations contained in the latest communication from the College of Teachers of Chile AG, in the context of the follow-up given to the recommendations relating to the previous representation (GB.329/INS/21/3).

In the Committee’s subsequent examination, it noted that, in the latest representation, the College of Teachers of Chile AG alleged that: (a) the Government had not implemented the recommendations of the tripartite committee relating to the previous representation, as it had not determined the time to be allocated for teacher appraisals in consultation with the College of Teachers of Chile AG, and Act No. 20903 of 2016 (Teaching Careers Act) did not indicate the number of non-teaching hours to be allocated to teachers for appraisals, or where they are to be undertaken; and (b) the hours spent on appraisals constitute additional, unpaid and mandatory work, which is therefore damaging to the occupational health of teachers. It also noted the Government’s indication that: (1) with respect to the alleged lack of consultations, the College of Teachers of Chile AG participated directly in the formulation of the teacher appraisal process established by the Teaching Careers Act; (2) with respect to the time required to carry out appraisals, the Office of the Comptroller General of the Republic had determined in repeated opinions that this type of appraisal was a non-teaching activity, and must be carried out within working hours and that work performed outside of working hours shall be paid as overtime; and (3) as appraisals are a mandatory process for teaching professionals in educational establishments that are dependent on municipal authorities, the parties are required to agree on, in the employment contracts as non-teaching curricula, the hours to be spent on this appraisal process. The Government indicated that it was in the process of developing regulations to determine more specifically the work and activities that may be included in the definition of non-teaching curricular hours, in accordance with section 6 of the Teachers’ Statute, as amended by the Teaching Careers Act.

The Committee recalls that in June 2018 and October 2020, the Governing Body postponed once again the appointment of a committee charged with examining the new representation pending examination by this Committee (GB.333/INS/8/1, June 2018 and GB.340/INS/19/9, October 2020).

The Committee recalls that, in its previous comments, it requested the Government to provide information on the consultations held on the development of the teaching appraisal process established by the Teaching Careers Act, and on the progress made in the formulation of regulations to determine non-teaching curricular hours.

In this regard, the Committee takes due note of the Government's indication in its report that the College of Teachers of Chile AG has participated directly and actively in the study and development of the process of evaluation and professional development of teachers and that it has been heard and received in all instances of the legislative process, as can be seen from the reports of the education committees and the two parliamentary chambers.

In addition, the Government indicates that in accordance with section 69 of the Teachers’ Statute, as amended by the Teaching Careers Act, teaching hours have been reduced to increase non-teaching working hours. Accordingly, since the 2019 school year, only 28 hours and 30 minutes of the 44 hours of work per week can be dedicated to teaching (65 per cent of working hours, in comparison with 75 per cent prior to the change). The Committee notes the document communicated by the Government entitled "Increase in non-teaching working hours, an opportunity for the professional development of teachers", published in 2019 by the Ministry of Education. The Government indicates that this document provides guidance on the use of non-teaching working hours for professional development activities and guides the management of institutions on managing the reduction in teaching hours. This document also shows the distribution between teaching hours, non-teaching hours and rest. Finally, the Committee notes that the regulations to determine the work and activities that may be included in the definition of non-teaching curricular hours are at the last stage of their preparation and are being examined for their finalization. The Committee welcomes the information communicated by the Government as well as the measures taken to give effect to the recommendations made in the context of the representation presented by the College of Teachers of Chile AG. The Committee requests the Government to provide a copy of the regulations to determine activities and work that may be included in the definition of non-teaching curricular hours as soon as it is adopted following full tripartite consultations and to continue to provide information on the tripartite consultations carried out in this regard.

In addition, the Committee recalls that it intends to examine, in the context of the regular reporting cycle (2022), the following matters raised in its comments made in 2016, and hopes that the Government will provide full information in this regard.

Article 2(3). Measures that could be taken to ratify relevant OSH Conventions of the ILO. The Committee requests the Government to provide information on the consultations held in relation to the measures that could be taken for the ratification of the relevant ILO Conventions on OSH.

Article 3. Formulation of a national policy in consultation with the most representative organizations of employers and workers. The Committee requests the Government to provide information on the consideration given to the specific problems of teachers within the framework of the national policy.

Article 5. National programme. The Committee requests the Government to provide information on the formulation of the national programme and the consideration given to the specific features of teaching work in this regard.

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Comments adopted by the CEACR: Chile

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