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

The Committee notes the Government’s report.

The Committee also notes that the Government has not provided its observations on the comments made on the application of the Convention by the Single Central Organization of Workers (CUT) on 1 February 2001. The Committee notes that the CUT criticizes, on the one hand, certain sections of the Labour Code respecting the exercise of the right to collective bargaining, the provisions of which have already been commented upon by the Committee and, on the other, indicates that in practice there is no possibility of the reinstatement of workers dismissed for trade union reasons and moreover that the legal proceedings are interminable. In this respect, the Committee notes that the legislation (section 174 of the Labour Code) provides for the possibility for the judicial authority to order the reinstatement of a dismissed worker covered by protective labour provisions and that infringements of the provisions on trade union protection are punishable with fines (section 175 of the Labour Code). The Committee requests the Government to forward its comments on the statement by CUT concerning the excessive duration of legal procedures in cases of anti-union discrimination.

1. In its previous direct request, the Committee indicated that, by virtue of section 304 of the Labour Code, collective bargaining does not exist in the state enterprises dependent on the Ministry of National Defence or those connected with the Supreme Government through that Ministry, or in those in which special laws prohibit collective bargaining, nor can there be collective bargaining in public or private enterprises or institutions, whose budgets have been financed during any of the past two calendar years to the extent of over 50 per cent by the State, or by means of duties or taxes. The Committee recalled that this provision is not in conformity with the Convention and requested the Government to take measures to amend section 304 of the Labour Code. The Committee notes the Government’s statement that it has taken note of the above comments. In this respect, the Committee requests the Government to provide information in its next report on any measure that it envisages adopting so that workers in the above sectors, who are not members of the armed forces or the police and who are not engaged in the administration of the State, enjoy the right of collective bargaining.

The Committee also noted that section 1 of the Labour Code provides that it does not apply to officials of the National Congress or the judiciary, nor to workers in state enterprises or institutions, or those in which the State has an interest, participation or representation, provided that such officials and workers have a special status in law. The Committee requested the Government to indicate in its next report whether these categories of workers enjoyed the guarantees laid down in the Convention and, if so, to indicate the legal basis for such guarantees. The Committee notes the Government’s statement that: (1) the officials of the National Congress may establish associations, as they have been included in the legal system established by Act No. 19296, containing provisions governing the establishment, operation and dissolution of associations of officials in the State administration; and (2) the officials of the judiciary continue to be governed by a special status, which prohibits them from establishing trade union organizations and engaging in collective bargaining. In this respect, the Committee recalls that workers in the National Congress and the judiciary, in the same way as those in State enterprises and institutions or those in which the State has an interest, participation or representation, should benefit from the right of collective bargaining. In this connection, the Committee requests the Government to take measures to secure this right for the officials concerned in so far as they are not officials engaged in the administration of the State, and to provide information in its next report on any measure adopted for this purpose.

2. The Committee noted in its previous direct request that, under the terms of sections 314bis and 315 of the Labour Code, groups of workers are authorized to submit draft collective agreements and it requested the Government to indicate whether in practice the groups of workers referred to in the above sections carry out collective bargaining, even where there exist workers’ organizations in the relevant sector. The Committee notes that the Government provides a historical summary of the legislation governing collective bargaining and indicates that: (1) the provisions of section 314bis are in conformity with the criterion endorsed by the Committee on Freedom of Association allowing negotiations with workers who are not organized in a trade union, provided that agreements are reached with representatives of the workers concerned who are duly elected and authorized; (2) section 315 establishes the formal context within which regulated collective bargaining takes place, that is bargaining which gives rise to a collective agreement and under which the initiative of collective bargaining always rests with the workers, through an enterprise trade union or a group of workers formed for this purpose; (3) a trade union in an enterprise or one of its establishments is empowered to engage in collective bargaining by the sole fact of being such an entity, without importance being attached to the number of workers represented, in contrast with groups of workers which are formed for the purposes of negotiations and have to achieve a specific quorum set out in the law; and (4) collective agreements and contracts concluded both by groups of workers formed for this purpose and by trade union organizations currently coexist in many enterprises.

In this connection, the Committee emphasizes that the Convention refers to the promotion of collective negotiation between employers or their organizations and workers’ organizations and that groups of workers should only be able to negotiate collective agreements or contracts in the absence of such organizations. In these conditions, the Committee requests the Government to take measures to amend the legislation as indicated above and to provide information in its next report on any step that has been taken for this purpose.

3. The Committee also noted in its previous comments that, by virtue of section 320 of the Labour Code, the employer has an obligation to communicate to all workers in the enterprise the submission of a draft collective agreement so that they can propose draft texts or subscribe to the one that has been submitted. The Committee considered that a provision of this type does not encourage or promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations, on the one hand, and workers’ organizations, on the other, and requested the Government to take measures to repeal this provision. The Committee notes the Government’s indication that: (1) the purpose of the legislator was to make it possible for the greatest possible number of workers empowered to engage in collective bargaining to do so during the same period; (2) the provision commented upon by the Committee is in harmony with other provisions of the Labour Code which provide that collective bargaining within the enterprise has to be carried out during the same period; (3) these provisions promote order and peace in labour matters, so that the enterprise is not exposed to reiterated bargaining processes which take time and affect performance at both the managerial level and among workers; and (4) its application (which only applies in the case of "regulated bargaining") does not in any way affect the full development and utilization of procedures of voluntary negotiation between the parties. In this connection, taking into account the comments made in the previous paragraph with regard to sections 314bis and 315 of the Labour Code, the Committee reiterates that this provision is not in conformity with Article 4 of the Convention and requests the Government to take measures to repeal it. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

4. Finally, the Committee regrets to note that the Government has not provided its observations on the comments made by the Confederation of Municipal Workers of Chile (ASEMUCH) in a communication dated 6 June 2003. The Committee notes that the comments made by ASEMUCH refer to a Bill which would deny the right to collective bargaining of organizations of municipal officials and indicates that in Chile the practice of macro-social negotiations exists and also of negotiations in decentralized institutions. In this respect, the Committee recalls that, in accordance with Article 6 of the Convention, only public servants engaged in the administration of the State (and particularly those working in ministries and other comparable government bodies) and those acting as auxiliaries to them may be excluded from the scope of application of the Convention. In these conditions, the Committee draws the Government’s attention to the fact that municipal officials should enjoy the right to collective bargaining, even though this right may be subject to specific arrangements.