Chile

"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. "

"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."

"Direct Request: 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. Observations: Article3. 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 supply of goods to the population or to national security. The Committee observed that this definition of enterprises in which the right to strike cannot be exercised, renewed every two years and approved jointly by various ministries and subject to appeal before 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). The Committee noted that the concepts of public utility and of damage to the economy are broader than that of essential services, observing that “services of public utility” are already 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. While reiterating 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 requests the Government to provide information on the application in practice of this section. In light of the above, and reiterating once more the need to amend section 362 of the Labour Code to ensure that the prohibition of the right to strike can only cover essential services in the strict sense of the term, the Committee requests the Government to continue to provide information on the application in practice of this section, specifying the categories of services provided by the enterprises excluded from the exercise of the right to strike, and the treatment of the complaints submitted in this regard. "

"Replacement of workers. The Committee noted that although the Labour Code contains a provision prohibiting the replacement of striking workers, as well as sanctions in the event of such a replacement (sections 345, 403 and 407), other provisions could undermine or introduce uncertainty into such prohibition to replace striking workers. The General Confederation of Public and Private Sector Workers (CGTP) previously referred to the possibility envisaged in 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. The Committee requested the Government to provide further information on the above-mentioned sections.The Committee notes that, according to the Government, between January 2019 and June 2023, a total of 272 complaints of strike replacement were lodged with the Directorate for Labour and that these resulted in 268 inspections of enterprises. The Committee also observes, according to the information provided by the Government in relation to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Directorate for Labour maintains a register of convictions for anti-union or unfair practices and publishes a list of offending enterprises and trade union organizations every six months. The Committee notes that, according to this register, between the second half of 2020 and the first quarter of 2023, the fines applied in cases of replacement of striking workers varied from 20 to 120 Monthly Tax Units (approximately equivalent to US$1,400 to US$8,800). "