Propuesta Constitucional

21. The right to organize and to bargain collectively

  • Workers could only bargain collectively through trade union organizations, granting exclusively the right to collective bargaining to such organizations.
  • As many trade unions as deemed appropriate may be formed, which would repeal the existing quorum rules.
  • The purposes of trade union organizations are extended to those they deem appropriate, leaving without effect the current restrictions on participation in political-partisan activities.
  • Collective bargaining is broadened to include branch, sector or territorial bargaining, which could increase entry barriers to certain activities, harm smaller companies and affect the operational continuity of productive sectors.
  • Collective bargaining is extended to public employees and the current bargaining restrictions are eliminated with respect to companies that provide public utility, security or supply services to the population.

In this matter the constitutional proposal points out:

The Constitution guarantees workers in both the public and private sectors the right to freedom of association. This right includes the right to organize, to bargain collectively and to strike.

Trade unions are the exclusive holders of the right to collective bargaining, as the sole representatives of workers before the employer(s).

The right to organize includes the right to form the trade union organizations they deem appropriate, at any level, national and international, to join and leave them, to establish their own rules, to draw up their own objectives and to carry out their activities without the intervention of third parties.

Trade union organizations shall enjoy legal personality by the mere fact of registering their statutes in the manner prescribed by law.

The Constitution guarantees the right to collective bargaining. It will be up to the workers to choose the level at which such bargaining will take place, including branch, sectoral and territorial bargaining. The only limitations on the matters subject to negotiation shall be those concerning the unrenounceable minimums established by law in favor of the workers.

Main developments and comments

1. By stating that the right to organize includes the right to form the trade union organizations that one deems appropriate, it could be understood that this would repeal the rules on the quorum for the formation of trade unions, requiring only a registration in accordance with the law.

2. The restriction that exists in the current Constitution for trade union organizations to participate in political-partisan activities is eliminated, and total amplitude is established with respect to their purposes (which are currently enumerated in the Labour Code).

3. It establishes “trade union entitlement”, granting the right to collective bargaining exclusively to trade union organizations, not allowing collective bargaining through workers by themselves or through negotiating groups. This would affect the “negative freedom of association”, in particular, the freedom not to join or leave a trade union, since the right to collective bargaining could only be exercised through a trade union organization.

4. The proposal expands collective bargaining to include bargaining by branch, sector or territory. This could tend to rigidify working conditions in each sector, make collective bargaining processes more difficult, create barriers to entry into the sector and harm smaller companies that cannot afford the labor benefits granted by large companies.

5. At present, negotiations are basically focused on remuneration and common working conditions. The proposal broadens the subjects to be negotiated by establishing that the only limits are the unrenounceable minimums set by law. It also eliminates the current legal restriction on collective bargaining on matters that restrict or limit the employer’s power to direct and manage the company.

6. Currently, private sector workers and employees of companies in which the State has a shareholding of less than 50 per cent can bargain collectively. The proposal extends the right to all public and private employees without limitations.

7. If the new Constitution enters into force, the President of the Republic must submit a bill within 18 months of its entry into force to bring labor legislation into line with the provisions of the proposed Constitution in this area.

Contacts

Ricardo Tisi rtisi@cariola.cl
Bárbara Zlatar bzlatar@cariola.cl
Ignacia López ilopez@cariola.cl
Sebastián Krebs skrebs@cariola.cl
Gonzalo Jiménez gjimenez@cariola.cl
Florencio Bernales fbernales@cariola.cl
Verónica Cuadra vcuadra@cariola.cl
Lorena Avendaño lavendano@cariola.cl
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