Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the Government’s report.

Article 2 of the Convention. The Committee notes the indication in the Government’s report on the application of Convention No. 98 that officials in the judicial authorities continue to be governed by special conditions of service which prohibit them from establishing trade union organizations. The Committee recalls that Article 2 of the Convention provides that workers and employers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing and that, under the terms of Article 9 of the Convention, only the members of the armed forces and the police may be excluded from its scope of application. Under these conditions, the Committee requests the Government to take measures to ensure that officials of the judicial authorities are afforded the guarantees set forth in the Convention. The Committee requests the Government to provide information in its next report on any measures adopted for this purpose.

Article 3. 1. Right to elect representatives in full freedom. In its previous direct request, the Committee noted that article 23 of the Political Constitution provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for those trade union officials who participate in party political activities. The Committee notes the Government’s contention that: (1) the constitutional provision seeks to secure greater freedom and independence for trade union organizations; this does not prevent each member of a trade union organization from maintaining political affiliation, provided that this does not affect her or his activities within the organization; and (2) section 236 of the Labour Code provides that to stand for and hold office as a trade union delegate it is necessary to comply with the requirements set out in the respective rules, with the result that the eligibility requirements are established by the trade union organizations themselves. In this respect, the Committee considers that article 23 of the Political Constitution may establish obstacles in such a way that certain persons are deprived of the right to be elected to trade union office solely because of their political beliefs or affiliation and that it should be the trade unions themselves which regulate such questions in their rules. In these conditions, the Committee requests the Government to take measures to amend the above constitutional provision so as to bring it into full conformity with the Convention. The Committee requests the Government to provide information in its next report on any measure adopted to this end.

The Committee also referred previously to section 18 of Act No. 19296 on civil servants’ associations, which provides that a candidate for union leadership must not have been convicted of a serious offence (pena aflictiva). The Committee notes the Government’s indication that section 18 of the above Act was amended by Act No. 19806 of 31 May 2002, with the deletion of the words "nor to have been tried in a court of law" (ni hallarse procesado).

2. Right to organize their administration and activities and to formulate their programmes. The Committee noted previously that sections 372 and 373 of the Labour Code provide that: (1) all the workers in the enterprise involved in the negotiations shall have the right to participate in the ballot to decide on strike action; (2) the employer shall inform all the workers concerned of the final offer; (3) in the ballot, the workers shall vote in favour of the strike or in favour of accepting the employer’s offer; (4) the decision to strike shall be taken by an absolute majority of the workers in the respective enterprise; and (5) if this proportion is not attained, it shall be understood that the workers accept the employer’s final offer made during the negotiations. The Committee notes the Government’s indication that: (1) the administrative case law of the Directorate of Labour has repeatedly found that in the ballot on the last offer of the employer or strike action, only those workers involved in the respective process and who are under the obligation to work at the time are obliged to participate, thereby excluding from this group such workers as are on medical leave, holiday or who are not engaged in the corresponding shifts; and (2) the legislation is very rigorous and closely regulated with regard to the exercise of the right to strike. In this respect, the Committee recalls once again that legislative provisions that require a vote by workers before a strike can be held must ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). In these conditions, the Committee requests the Government to take measures to amend the above sections of the Labour Code in the sense indicated above and to provide information in its next report on any measure adopted to this end.

The Committee also noted previously that, under the terms of section 374 of the Labour Code, once a decision has been taken to strike, this must be carried out within three days, failing which it shall be understood that the workers in the enterprise concerned have refrained from going on strike and, consequently, accept the employer’s final offer. The Committee pointed out that: (1) the fact that strike action has not been taken within three days should not be taken to mean acceptance of the employer’s proposal by the workers; (2) the proposal must be accepted explicitly by the workers or their representatives; and (3) the workers must not lose their right to strike because they have not taken such action within three days of calling the strike. The Committee notes the Government’s statement that it will take into account these comments in discussions which may be held in future on this point. The Committee requests the Government to inform it in its next report on any measures taken to amend the provision in question.

The Committee noted previously that section 379 of the Labour Code provides that "at any time the group of workers concerned by the negotiations can be called upon to vote, by not less than 20 per cent of them, for the purpose of deciding to censure the negotiating committee, which must be decided upon by the absolute majority, and in which case a new committee shall be elected forthwith." The Committee considered in its previous direct request that this section may give rise to acts of interference with the right of trade unions to organize their activities and that these questions should be dealt with solely by trade union statutes. The Committee notes the Government’s indication that it will bear these comments in mind in any discussions which may be held in future on this point. The Committee requests the Government to provide information in its next report on any measures adopted to amend the above section.

The Committee notes that section 381 of the Labour Code contains a general prohibition on the replacement of striking workers, but that there exists the possibility of their replacement subject to compliance by the employer with certain conditions in the final offer during the negotiating process. The Committee notes the Government’s statement that: (1) it is necessary to bear in mind that the inspection carried out by the Directorate of Labour is intended to ensure that the provision is complied with in its entirety, namely that such replacement can be carried out only by employers who comply with the minimum requirements established; and (2) the interpretation which has been made of this provision by the above inspection service has been very restrictive, in the sense of considering as a legitimate replacement any arrangement in which a worker who provides a replacement performs the same tasks as the worker who is on strike; this has resulted in prohibiting in practice the replacement of workers by students and volunteer workers. Nevertheless, the Committee is bound to recall that the replacement of strikers seriously impairs the right to strike and affects the free exercise of trade union rights (see General Survey, op. cit., paragraph 175) and it requests the Government to amend the legislation to ensure that enterprises cannot hire new workers to replace those who are engaged in a lawful strike.

The Committee also commented on section 384 of the Labour Code, which provides that strikes cannot be called by workers in enterprises which supply public utility services or those the interruption of which would seriously endanger the health, public supply, the national economy or national security. In such cases, the abovementioned article provides that if agreement is not reached between the parties during the collective bargaining process, the matter shall be referred to compulsory arbitration. The Committee notes the Government’s indication that: (1) in July the Ministries of Labour and Social Insurance, the Economy, Energy and Mining and National Defence drew up a list of enterprises in which, although the workers may engage in collective bargaining, they may not call a strike and the process of negotiation is therefore subject to compulsory arbitration; and (2) the list of enterprises in the above situation consists almost entirely of enterprises which provide essential public services such as gas, electricity, health services, enterprises in ports and others of a strategic nature, such as the Central Bank and the Postal Services of Chile, as well as the Arica-La Paz rail connection, under the terms of an agreement concluded with Bolivia. In this respect, the Committee recalls that the right to strike is an intrinsic corollary of freedom of association protected by Convention No. 87. This right is not, however, absolute and may be restricted in exceptional circumstances or even prohibited for certain categories of workers, in particular certain public servants (those exercising authority in the name of the State) or workers providing essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) (see General Survey, op. cit., paragraph 179). The Committee considers that the definition of services in which strikes may be prohibited, as set out in section 384, as well as the list drawn up by the government authorities in July, is too broad and goes beyond services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (for example, port enterprises, the Central Bank and the railway). In these conditions, the Committee requests the Government to take measures to amend the law and practice in the sense indicated above and to provide information in its next report on any measures adopted to this end.

The Committee also noted that section 385 of the Labour Code provides that in the event of a strike which by its nature, timing or duration causes a serious risk to the health, the supply of goods or services to the population, to the national economy or national security, the President of the Republic may order the resumption of work. The Committee notes the Government’s statement that: (1) despite the existence of this legal provision, the President of the Republic has not had recourse to it for the past 25 years, as the most sensitive collective bargaining processes have been resolved through direct dialogue between the parties or with the intervention of the administrative authorities to bring the parties closer; (2) under the terms of section 385, for the President of the Republic to order the resumption of work in general or in a specific service, there has to be a situation of national crisis caused by the interruption of services which affects the life, personal safety or health of the whole or part of the population, when the strike causes serious harm to health, the supply of goods and services to the population, the economy of the country or national security; (3) the workers concerned by the resumption of work are covered by the procedures of conciliation, mediation and arbitration; and (4) the arbitrator is designated from the list of independent persons established previously, with their fees being covered by the State. In this respect, the Committee considers that the definition contained in section 385 of services in which the President of the Republic may order the resumption of work appears to go beyond essential services in the strict meaning of the term. Taking into account the fact that, according to the Government, the President of the Republic has not had recourse to this prerogative for 25 years, the Committee requests the Government to take measures to repeal or amend the provision in question as indicated above.

The Committee also noted that section 254 of the Penal Code provides for penal sanctions in the event of the interruption of public services or public utilities or the abandonment of their posts by public employees. The Committee notes the Government’s statement that the above provision does not set forth sanctions for the exercise of the right to strike, but for the interruption of public services or public utilities where such interruption is unlawful, untimely and clearly harmful to users and the country. In this respect, the Committee considers that a strike may be declared illegal by virtue of certain of the legislative provisions commented on in the paragraphs above and that this could result in the imposition of the sanctions envisaged in the Penal Code. In these conditions, the Committee requests the Government to take measures to amend section 254 of the Penal Code. The Committee requests the Government to provide information in its next report on any measures adopted to this end.

The Committee also noted that section 48 of Act No. 19296 grants broad powers to the Directorate of Labour for the supervision of the accounts and financial and property transactions of associations. The Committee notes the Government’s statement that a provision similar to the above (section 265 of the Labour Code) was repealed on the grounds of the need to grant trade union organizations greater freedom and independence. The Committee requests the Government, in the same way as for the repealed provision of the Labour Code, to take measures to amend section 48 of Act No. 19296 to limit the powers of supervision of the Directorate of Labour.

Finally, the Committee notes the comments of the National Confederation of Municipal Workers of Chile (ASEMUCH), dated 6 June 2003, on the application of the Convention. The Committee regrets that the Government has not provided its observations in this respect. The Committee notes that ASEMUCH refers to the authorities’ intention to table a draft reform of Act No. 18695 setting forth the constitutional framework for municipal authorities, which would abolish the right to strike of municipal officials. In this connection, the Committee refers to its comments in the above paragraphs on the categories of workers for whom the exercise of the right to strike may be restricted or even prohibited. The Committee considers that municipal officials who do not exercise authority in the name of the State should enjoy the right to strike.