Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

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

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Observation

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The Committee notes with regret that the Government has not responded to multiple observations from the social partners regarding the application of the Convention in law and practice sent in 2016, 2019 and 2020. The Committee again requests the Government to transmit its comments without delay.

Article 1 of the Convention. Anti-union discrimination. In its previous comments, the Committee noted assertions from trade union organizations that the system of protection against anti-union discrimination is still ineffective and not dissuasive (indicating, for example, that the maximum penalty of 300 monthly tax units is not dissuasive for a multinational enterprise). In light the above, the Committee invited the Government to engage in dialogue with the most representative organizations on the evaluation of the system of protection against anti-union discrimination. The Committee notes the Government’s indication that between July 2019 and June 2023, 3463 complaints of unfair and anti-union practices were lodged with the Directorate for Labour, of which 520 were for obstructing the formation or functioning of trade unions, applying pressure through threatening the loss of employment or benefits; 378 complaints for failing to give agreed employment to a trade union leader; 344 for unlawful dismissal of workers covered by trade union immunity; and 335 for acts of interference. The Committee notes that the Directorate for Labour maintains a register of convictions for unfair or anti-union practices and publishes the list of enterprises and trade union organizations convicted of infringements twice yearly. It observes that, according to the register, between the second half of 2020 and the first quarter of 2023, fines were imposed on nearly 100 enterprises. The fines varied from between 5 and 920 Monthly Tax Units (approximately equal to US$367 and US$67,000), and the highest penalty was imposed on one single occasion on an enterprise for unfair practices in collective bargaining. With respect to the request to the Government to engage in dialogue with the most representative organizations on the evaluation of the system of protection against anti-union discrimination, the Government indicates that Department for Social Dialogue of the Undersecretariat of Labour administers the Trade Union and Cooperative Labour Relations Fund, established by Act 20940, the aim of which is to finance projects, programmes and activities in respect of trade union training, promotion of social dialogue and the development of cooperative labour relations between employers and workers, including a programme designed for trade union leaders conducted in 2023. The Government also indicates that since 2006, the Department of Social Dialogue has been implementing the “Mesas de Diálogo Social” (Social Dialogue Roundtables) programme, in which the representatives of workers and employers take up issues related to employment and labour relations. The Committee requests the Government to continue providing statistical information related to acts of trade union discrimination denounced to the authorities. While encouraging any initiative aimed at strengthening social dialogue, the Committee requests that the Government, within the framework of the existing spaces for social dialogue, take up in a direct and effective manner, the concerns expressed previously by the trade union organizations as well as any other concern related to existing protection systems against trade union discrimination.

Article 4. Promotion of collective bargaining. Workers’ organizations and negotiating groups. The Committee noted that: (i) in a ruling of 2016, 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; (ii) the Directorate for Labour issued Opinion No. 3938/33 of 2018, indicating that agreements concluded by negotiating groups (groups of non-unionized workers coming together for the purpose of bargaining) constitute collective agreements recognized by the Labour Code; and (iii) while an appeal for protection against the opinion was upheld by the Santiago Court of Appeal, the ruling was subsequently overturned by the Supreme Court. The Committee observed that negotiating groups are not defined in the Labour Code and recalled that it has 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 where no such workers’ organizations exist. The Committee requested 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 from undermining the function of workers’ organizations or weakening the exercise of freedom of association.

The Committee notes that the Government indicates that on 19 May 2022, the Directorate for Labour issued a statement modifying its interpretation of agreements concluded between employers and groups of workers coming together for the purpose of bargaining (negotiating groups), reconsidering its position as expressed in Opinion No. 2928/33 of 2018. The Government reports that under Opinion No. 810/15, the Directorate for Labour determined that: (i) negotiating groups, being entities that are not prohibited by law, may only undertake negotiation procedures of an atypical nature, since there are no legal rules in place to govern such negotiation; (ii) in so far as no regulatory procedure exists in the law, the Directorate for Labour cannot determine a procedure, nor give the agreements signed by these groups the value of collective instruments; (iii) these agreements are not collective instruments regulated by the Labour Code, and thus cannot have the legal effects the Labour Code ascribes to collective instruments concluded within the framework of regulated or non-regulated trade union collective bargaining; and (iv) neither can the agreements concluded with a negotiating group be the subject of an extension of benefits agreement, either through a unilateral extension by the employer, nor by agreement between the parties, since they do not meet the requirements of section 322 of the Labour Code. The Committee notes this opinion with interest and observes that, in the Opinion, the Directorate for Labour indicates that it considered it appropriate to issue a statement, both to resolve the issues that had been raised, and to bring its interpretation of the matter more closely into compliance with the provisions of the Convention, as with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which are binding for the Chilean State. Furthermore, the Committee notes that the Government highlights how the different trade union training programmes that are ongoing in the country contribute to the promotion of collective bargaining and that Act No. 20.940 enables the workers and employers of micro, small and medium-sized enterprises to request that the Directorate for Labour convene a technical assistance meeting on conducting collective bargaining. The Committee encourages the Government to continue to take measures that contribute to promoting collective bargaining within the meaning of the Convention. It requests the Government to report on the impact of the Opinion on collective bargaining and hopes that the Opinionwill contribute to the recognition of the fundamental role of trade union organizations in collective bargaining. The Committee also requests the Government, by making use of statistical information on the registration of collective agreements with the labour inspection, to adopt measures to ensure that the involvement of negotiating groups in collective bargaining does not undermine the function of workers’ organizations or weaken the exercise of freedom of association. Finally, the Committee requests the Government to indicate the number of collective agreements concluded in the country, as well as the sectors affected, and the number of workers covered by these agreements. Further noting from the statistical data provided by the Government, that almost 90 per cent of the collective instruments signed between July 2019 and June 2023 were concluded by a category of negotiating entity denominated as “other type of negotiating entity”, the Committee requests the Government to provide details on the types of entities included in this category.

Enterprises financed by the State. The Committee observed that section 304 of the Labour Code 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 takes note of the Government’s indication that on 14 July 2023, the Directorate for Labour issued Opinion No. 995/30, reconsidering the doctrine laid down in 2019 regarding section 304 of the Labour Code, extending the capacity to bargain collectively to the workers to whom that section refers. The Committee observes that the Opinion refers expressly to the comments that the Committee has been formulating and, among other matters, indicates that: (i) the previous doctrine had not established any limit to the prohibition imposed in that section, enabling its application on the sole basis of the financing in question, disregarding any question of its origin, thereby depriving a large number of workers of their fundamental right to bargain collectively and to take strike action, which are essential parts of freedom of association; (ii) the prohibition to bargain collectively provided under section 304 of the Labour Code is exclusively applicable to public or private enterprises in which the State has financed 50 per cent or more of the budget in either of the two last calendar years, that is, a disbursement expressly established in the National Budget Act and not subject to any modality; (iii) the prohibition is not applicable to enterprises or institutions providing goods to the State through the award of State contracts (public tenders or framework and direct negotiation agreements), and (iv) resources transferred to a higher education institution to finance free education (student benefits) are not included under section 304 of the Labour Code, likewise, subsidized education establishments are exempted from the prohibition to negotiate, as are the benefactors of such institutions. The Committee also observes that the Opinion in question indicates that the reasoning applied has been taken into case law jurisprudence, and cites the example of a 2022 ruling by the Appeal Court of Santiago which emphasized that indirect financing is outside the scope of the exclusion provided under section 304 of the Labour Code, when it results from the award of projects and the conclusion of agreements in which the receipt of financing is conditional on effective execution of the contractual considerations. The Committee notes this Opinion with interest, since it seeks, through a restrictive interpretation of section 304, to limit the categories of workers excluded from the right of collective bargaining as a result of that provision. The Committee requests the Government to report on the impact of the interpretation in question on the exercise of the right to bargain collectively. However, recalling that under Articles 5 and 6 of the Convention, only the armed forces and the police and public servants engaged in the administration of the State may be excluded from collective bargaining, the Committee reiterates that it is necessary for the Government to take measures to revise section 304 of the Labour Code to ensure that all categories of workers covered by the Convention are able to take part in collective bargaining. The Committee requests the Government to report on the measures taken in this respect.

Article 6. Scope of application of the Convention. Public employees not engaged in the administration of the State. In its previous comments, 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 enjoy the guarantees of the Convention. The Committee observes that, in its report regarding the Labour Relations (Public Service) Convention, 1978 (No. 151), the Government indicates that although collective bargaining is expressly prohibited for the public sector, in practice associations of public sector officials have periodically entered into negotiations with the Executive and an agreement on adjustments to the wages of workers in that sector was concluded in December 2022. The Committee refers to its comments regarding Convention No. 151 and invites the Government to consider adopting the necessary legislative reform to ensure a stable legislative framework for collective bargaining. The Committee also requests the Government to provide details regarding the application of the guarantees provided by the Convention to public servants who are not engaged in the administration of the State.

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