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

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Chili (Ratification: 1999)

Autre commentaire sur C087

Observation

Demande directe

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After observing that Act No. 20.940 (Modernization of the Labour Relation System) introduces 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), and that several trade union organizations denounced the fact that the additional requirement that has been introduced makes the establishment of workers’ organizations difficult, the Committee requested the Government to provide practical information on the impact of this new requirement for the establishment of unions in enterprises with 50 or fewer workers. The Committee notes that the Government cites a 2017 Opinion of the Directorate for Labour, which indicates that: (i) the new requirement responds to the need to encourage the establishment of more representative organizations with increased autonomy to promote the defence of collective interests and more equitable labour relations within the enterprise; (ii) in enterprises where there is no trade union, an organization with a minimum of eight workers may be established, and must achieve the required quorum within one year; and (iii) for the purposes of calculating the total number of workers in the enterprise, those prevented from collective bargaining must be deducted, without prejudice to their right to join a trade union organization. While noting these indications, the Committee regrets that it has not received any information on the impact of the new requirement in question for the establishment of unions in enterprises of 50 or fewer workers. The Committee recalls that in its previous comments, it noted that enterprises with fewer than 50 workers represented more than 80 per cent of the country’s enterprises. The Committee therefore again requests the Government to provide the above information.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee requested the Government to adopt 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). The Committee notes the Government’s indication that the section in question has not been subject to legal amendment nor been the object of an opinion issued by the Directorate for Labour. The Committee recalls once again that to avoid undue restriction of 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 therefore again requests the Government to take the necessary measures in this regard and to report any developments.

Date of the commencement of a strike. Section 350 of the Labour Code provides that the strike shall be carried out as from the fifth day of its approval, in order to allow a waiting period between the strike ballot and the effective commencement of the strike. Several social partners have challenged this provision, on the grounds that it imposes an excessive period of time between the ballot and the commencement of the strike, which limits the exercise of the right to strike. The Committee requested the Government to reply to these observations and to provide further information on the application of this provision in practice, indicating 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. The Committee notes that the Government provides copies of two opinions issued by the Directorate for Labour that refer to cases in which the strike was not voted in good time and form, and reiterates that, in conformity with section 350, if the strike is approved, it shall be effective as from the fifth day of its approval. While noting these opinions, the Committee again requests the Government to provide information on the application of this provision in practice, indicating what, if any, are the consequences, obligations and/or penalties imposed on the union should it wishes to commence a strike before or after the date 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. The Committee noted that since the entry into force of this new provision in 2017, there has only been one court application for the resumption of work which, though upheld by the court, was not applied, as during the time given for the implementation of the order, the parties agreed to end the strike. The Committee requested the Government to continue providing information on the application of this provision in practice. The Committee notes that the Government indicates that there is no new information in this regard, since the judicial procedure is not being used and there are no limitations to the exercise of the right to strike in the sense described above. The Committee requests the Government to continue reporting on the application of this provision in practice and to indicate the compensatory guarantees envisaged for workers who may be affected.

Seasonal agricultural workers. Recalling that seasonal agricultural workers do not fall into any of the categories for which the right to strike may be restricted, the Committee requested the Government to take the necessary measures to ensure in law and in practice that seasonal agricultural workers can enjoy the right to strike in the same way as other workers. Noting that the Government provides no information in this regard, the Committee refers to its previous request to the Government.

Application of the Convention in practice. With regard to the previous observations of the social partners who indicated that the courts have denied the capacity of the trade unions to represent their 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 the Government’s indication that, under section 234 of the Labour Code, the judicial representation of a union is vested in its executive board, which shall represent it judicially and extrajudicially. The workers’ organizations have also affirmed that the labour reform has facilitated interference by the 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). The Committee has observed that, since the entry into force of the current section 297 of the Labour Code, five applications have been made by employers to the Directorate of Labour for dissolution of unions. The Committee notes that the Government cites two rulings handed down in 2022 and 2023 upholding the dissolution of trade unions on grounds of non-compliance with the requirements for their establishment. The Committee requests the Government to continue to report on the application of this provision in practice, in particular on judicial procedures initiated by the Directorate for Labour through labour tribunals at the instigation of employers.

Finally, the Committee requested the Government to provide its comments on the allegations that the system for the determination of minimum services undermines in practice the effective exercise of the right to strike (including in relation to the independence of the bodies making such decisions; requests for minimum services submitted outside the time limits, and enterprises providing non-essential services that have succeeded in obtaining minimum services covering over 70 per cent of the personnel). The Committee requested 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 notes that the Government indicates that the establishment of minimum services depends on the scope of each specific negotiation; thus, if in a given enterprise certain posts demand high levels of care and attention, strike action is only limited where such posts cannot be kept operational by staff not exercising their fundamental right to strike. While taking note of the Government’s indications, the Committee observes that the concerns abovementioned were also related to the independence of the bodies which determine the minimum services as well as requests submitted outside the time limits. In addition, observing that the Government did not provide information on any minimum services covering over 50 per cent of the personnel that have been recorded, the Committee reiterates its previous request to provide detailed comments in relation to the above-mentioned concerns.