2010 Annual Survey of violations of trade union rights – Chile

Population: 17,000,000
Capital: Santiago
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182

The year 2009 was marked by frequent recourse to subcontracting as a strategy to obstruct the right to organise. Private companies such as LAN or ARAUCO S.A. continued to deploy tactics aimed at undermining labour rights and trade unionism. The Chilean government raised by 50% the sanctions against companies implementing anti-union practices. Trade union activities are hampered by a range of excessive restrictions.

Trade union rights in law

Problematic areas exist in the labour law despite basic trade union rights being guaranteed. Workers have the right to join and form unions without prior authorisation. However, the law grants broad powers to the Directorate of Labour to supervise the accounts and financial and property transactions of unions.

Collective bargaining is only guaranteed at the company level. In addition, it is of a “voluntary” nature, and is cumbersome for higher-level union organisations and union alliances. The right is further circumscribed by the fact that many workers in state-sponsored entities are excluded from collective bargaining, as are workers with apprenticeship contracts and those employed for specific tasks. Non-union workers are also allowed to propose collective agreements, even if a union exists at the workplace.

Furthermore, while the right to strike is recognised, there are many limitations. A lawful strike must be approved by an absolute majority of the employees of an enterprise, disputes can be referred to compulsory arbitration in many companies, and all strikes must be carried out within three days of the decision to call it. Workers in the public sector are prohibited from striking. Under certain circumstances, the President can order the resumption of work, and striking workers can also be replaced. Finally, those who participate in an unlawful strike can face imprisonment or banishment to a different region.

Trade union rights in practice and violations in 2009

Background: The political climate was intense throughout the year in Chile, with presidential and legislative elections being held in December. No single candidate was able to secure an absolute majority in the presidential race. As a result, Eduardo Frei of the Concertación coalition and Sebastián Piñera of the Coalition for Change had to face a second round of votes, scheduled for January 2010. The political parties within Concertación have been in power for almost 20 years, since the political transition following the end of military rule in 1990. In 2009, they prepared to face a possible right-wing victory. In the parliamentary elections, both the Concertación parties and the Coalition won the majority of the seats in Congress, with a difference of just one seat in favour of the Coalition.

Trade union and workers’ organisations took to the streets as of early 2009 to press the government for a sweeping reform of the pension system and its administration. The trade union delegates attending the 98th International Labour Conference called on the Chilean government to bring a structural solution to the serious problems with the pension system.

Number of companies sanctioned for anti-union practices almost doubled: The Labour Directorate announced that the number of companies sanctioned for anti-union practices during the second half of 2009 went from 19 to 32. The sectors receiving the most fines were commerce, manufacturing and security. The most heavily fined companies were printing firm Printax S.A. and the private school Helénico, for the unfair dismissal of workers whose jobs are legally protected given their status as trade union representatives. As well as being fined, companies are excluded from the public procurement system, and have to pay compensation to the workers affected.

Practices promoting precarious employment and obstructing unionisation: During 2009, public and private sector employers continued to widely use subcontracting as a means of undermining workers’ rights and guarantees and obstructing trade unionism. At least two thirds of workers in metal manufacturing companies are employed on precarious contracts, depriving them of adequate social protection, decent working conditions and the right to unionise.

Union bashing at LAN Airlines: In July, LAN Airlines Chile dismissed three union representatives, Juan Martínez, Carlos Sarmiento and Mario Ricci. This anti-union measure was one of a series of practices violating organising rights, aimed at weakening the union’s power to act. In addition, the company, which has branches in other countries, is developing a policy of precarious employment, making increased use of subcontracting and outsourcing arrangements.

Freedom of association and labour rights flouted at Arauco S.A.: On 24 September, some 20,000 workers at the forestry company Arauco S.A. staged a stoppage to demand recognition of the right to equal pay for all workers at the company, including those who are subcontracted. The forestry sector is characterised by the high level of labour subcontracting, through which companies outsource their activities without respect for trade union and labour rights. During the dispute, the company denied the workers’ right to collective bargaining by sector, stating that “each union has to negotiate directly with their employers, the subcontractors”. Subcontracting is thus used to circumvent the exercise of trade union rights.

Global Workers’ Committee refused entry to Gerdau plant in Chile: On 15 October, a delegation of the Gerdau Global Workers’ Committee was refused entry to the company’s plant in Chile. The committee gathered in front of the factory and handed over a letter to the management, protesting against the anti-union measure. The letter also called for a solution to the various disputes between the company and the trade unions in the region.

source: http://www.unhcr.org/refworld/country,,ITUC,,CHL,,4c4fec862a,0.html

2009 Annual Survey of violations of trade union rights – Chile

Population: 16,454,143
Capital: Santiago
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182

Progress has been made in monitoring the application of labour standards. There are still complaints against both private and public sector employers for their failure to respect trade union rights.

Trade union rights in law

Freedom of association – basic trade union rights recognised: Workers have the right to form unions without prior authorisation. The right to collective bargaining is recognised, as is the right to strike, but only in the private sector.

Collective bargaining restrictions: Collective bargaining is only guaranteed at the company level. The 2001 law provides for “voluntary” collective bargaining, meaning that trade unions can negotiate national deals only if the employer agrees. Similarly, while temporary workers – defined in the Labour Code as working in agriculture, construction, ports or the arts and entertainment sector – may form unions, they can only conduct collective bargaining if the employer is willing. Changes in the Labour Code facilitate collective bargaining in the agricultural sector, but it is still subject to the employers’ willingness to negotiate. Company unions can only engage in collective bargaining if the respective employers are prepared to do so.

Restrictions on the right to strike: Workers in the public sector do not have the right to strike, although teachers, municipal workers and health workers have all carried out strikes in the past. In many companies, disputes are subject to compulsory arbitration. Strikes by agricultural workers are prohibited during the harvesting season.

Instead of outlawing the practice of sacking strikers, the new law makes it “prohibitively expensive” to lay off workers who have been involved in industrial action. The law also does not explicitly ban companies from employing workers to break picket lines during an industrial dispute.

The law also includes “flexibility” measures, such as the introduction of short-term contracts and looser regulations for employing young workers.

Subcontracting Act: The Subcontracting Act that came into force on 1 January 2007 establishes a system whereby companies must certify compliance with the labour and social security obligations of their contract and subcontract workers.

Protection: An employee has the right to sue for unfair dismissal within 60 days. If s/he is found to have been unfairly dismissed, a 30% surcharge will be added to the redundancy package. If a judge finds that a worker has been dismissed for trade union activities, s/he has the right to return to work or receive compensation. Some categories of workers are excluded from this clause.

Companies may be penalised for breaking labour laws and, every six months, the government publishes a list of companies that have breached labour laws.

Trade union rights in practice and violations in 2008

Complaints to Labour Observatory: Despite the existence of a Labour Observatory in Chile, run by the national trade union centre Central Unitaria de Trabajadores de Chile (CUT), which constitutes progress in monitoring the respect of labour standards, serious accusations persist, mainly regarding the private sector. Tactics such as intimidation, disaffiliation and dismissals are just some of the all too common anti-union practices in the world of work.

Twenty companies found guilty of anti-union practices in the first half of 2008: The Department of Labour published a list of 20 companies found guilty of anti-union practices. The unfair dismissal of trade union leaders or members was the principal cause for condemnation, followed by the harassment of trade unionists, the illegal replacement of striking workers and the failure to deduct and transfer trade union dues.

Anti-union practices reported at the Santa Isabel supermarket: Marianella Fernández, leader of the workers’ union at the Santa Isabel supermarket, reported that on 21 April the company had applied to the courts for her trade union immunity to be withdrawn, accusing her of being disloyal and of harming the company’s image. According to the trade unionist, the company simply wanted to silence her for her attempts to defend its workers’ rights. The union lodged complaints against the company with the Labour Inspectorate for anti-union persecution and reported on the matter to the parliamentary Labour Commission, with the support of several members of Parliament.

Prosecutor reprimanded for anti-union practices: The national prosecutor Sabas Chahuán confirmed that a written censure motion had been passed against the prosecutor Alejandro Peña for three charges of anti-union practices. The charges were related to pressing for the disaffiliation of the civil servants’ association in the southern region Public Prosecution Service, of which Peña is chief prosecutor, causing the disaffiliation of 16 people by this action, and seeking in this way to ensure that the organisation did not have enough members to operate.

Complaints of anti-union practices by retailers: Workers for the Hites retail chain lodged complaints with the Department of Labour about non-respect of the collective bargaining process. They accused Hites of trying to negotiate directly with the workers and ignoring the union in order to weaken it.

source: http://www.unhcr.org/refworld/country,,ITUC,,CHL,,4c52caf8c,0.html