Freedom of association and strike: the rights explicitly enshrined in the new Constitution

Main articles of the draft

  • Article 8.- Right to decent work. Every person has the right to work and the free choice of it. The State guarantees decent work and its protection. This includes the right to fair working conditions, to health and safety at work, to rest, to enjoy free time, to digital disconnection, to the guarantee of indemnity, and full respect for fundamental rights in the context of the worked.
  • Article 9.- Participation of workers and workers. The workers, through their union organizations, have the right to participate in the company’s decisions. The law will regulate the mechanisms through which this right will be exercised.
  • Article 12.- Right to freedom of association. The Constitution guarantees workers, both in the public and private sectors, the right to
  • freedom of association. This right includes the right to unionize, to collective bargaining and to strike.
    Trade union organizations are the exclusive holders of the right to collective bargaining, as the sole representatives of workers before the employer or employers.
  • The right to unionize includes the power to establish trade union organizations that they deem appropriate, at any level, national and international, to join and disaffiliate from them, to set their own regulations, draw their own goals and carry out their activity without the intervention of third parties.
  • Trade union organizations will enjoy legal personality by the sole fact of registering their statutes in the manner established by law.
  • The Constitution guarantees the right to collective bargaining. It will be up to the workers to choose the level at which said negotiation will take place, including branch, sectoral and territorial negotiation. The only limitations to the matters susceptible of negotiation will be those concerning the inalienable minimums established by law in favor of the workers.
  • The Constitution guarantees the right to strike for workers and trade union organizations. The trade union organizations will decide the scope of interests that will be defended through it, which may not be limited by law.
  • The legislator may not prohibit the strike.
  • The law may only establish exceptional limitations to the strike to attend essential services that could affect the life, health or safety of the population.
  • Members of the Armed Forces, Order and Public Security may not go on strike.

Constitution in force

The current Constitution has several labor guidelines. Some of them are:

– Freedom of work and its protection. Every person has the right to free contracting and free choice of work with fair compensation.

– Any discrimination that is not based on personal capacity or suitability is prohibited, notwithstanding that the law may require Chilean nationality or age limits for certain cases.

– No kind of work may be prohibited, unless it is contrary to morality, security or public health, or is required by the national interest and a law declares it so.

– Collective bargaining with the company where they work is a worker’s right, except in cases where the law expressly does not allow bargaining.
The law will establish modalities of collective negotiation and adequate procedures to achieve a just and peaceful solution.

– State or municipal officials may not go on strike. Neither can people who work in corporations or companies, whatever their nature, purpose or function, who attend public utility services or whose stoppage causes serious damage to health, the country’s economy, the supply of the population or national security.

– The right to unionize in the cases and in the manner established by law. Union membership will always be voluntary. Trade union organizations will enjoy legal personality by the sole fact of registering their statutes and constitutive minutes in the form and conditions determined by law.

The law will contemplate the mechanisms that ensure the autonomy of these organizations.

Trade union organizations may not intervene in political-partisan activities.

“This regulation legitimizes and validates the strike for political reasons, prohibited by the ILO, and allows workers to carry out all kinds of strikes without any problem.”
Luis Lizama

“This scare that they are going to strike for anything, is not so real either, because the strike implies by definition the suspension of the employment relationship, and that means that salaries are not paid.”
wendoling silva

“The claims that have to be defended are labor claims, not political or other claims. Understanding that with this people can paralyze, for example due to the war in Ukraine, is a caricature”.
Jose Luis Ugarte

The scope of the strike and its consequences:
the subject that fuels the debate among experts

For some it is an issue that will generate stoppages without notice. Others downplay the rule and point out that it has clear limits.

In labor matters, in the draft Constitution proposed by the Convention, a wide list of topics debuts. Among these, those that tend to recur in the analyzes are the right to decent work; participation of workers, through their union organizations, in company decisions; trade union freedom for private and public workers; and the right to strike.

One by one these topics have been taken up in conversation forums between actors in the world of work, in which some point out that these are significant advances in rights; while others raise warning signs in some matters, such as the scope of the strike and freedom of association.

Consigned explicitly in the draft of the fundamental letter that will be voted on September 4, for the former head of the labor relations department of the Labor Directorate, Wendoling Silva, these are advances that she considers significant, in that they are recognized both for public and private workers the right to freedom of association and to strike.

“The strike was not directly recognized in the Constitution, because it does not speak of the right to strike, but only speaks of those who do not have the right to strike,” Silva graphs.

In the case of freedom of association, it specifies that the only thing that was consigned was the right to unionize. This recognition, he maintains, consolidates what promoted the labor reform of former president Michelle Bachelet, since in said reform it was incorporated into the Labor Code that the strike is a fundamental right exercised collectively by workers.

For the former director of Labor, Marcelo Albornoz, that the draft of the Constitution explicitly guarantees the collective right to strike is an advance. However, he is concerned about its scope.

From his perspective, the difficulty is related to the ownership of said right, that is, who exercises it. First, he notes that the draft says that “the right to strike belongs to workers and union organizations.”

But, it is immediately stated that “the decision to exercise it and the scope of the interests that it seeks to protect is the exclusive determination of the unions,” says Albornoz.

For Silva, establishing that the right belongs to both workers and unions, would imply that there could be a strike by union organizations -in the field of collective bargaining, for example-, as well as individual workers.

Several problems are identified in the dimension of the strike by the director of the Department of Labor Law and Social Security of the University of Chile, Luis Lizama.

In his view, this article was “very broad”, which exposes employers and the public sector to strikes without notice and not necessarily related to labor issues of the entities.

“By establishing that the strike cannot be limited by the legislator and whose motivation to carry it out is defined with total freedom and autonomy by the unions, it could lead the workers to carry out all kinds of strikes without any problem,” he warns, exemplifying that they could be carry out political strikes.

The professor of Labor Law at the Diego Portales University, José Luis Ugarte, disagrees with what Albornoz and Lizama have stated. In his opinion, the proposal puts Chilean constitutional law on a par with comparative law, since the Chilean law is one of the few texts that did not contemplate the strike.

And this stoppage, he expresses, would apply only to labor matters. “The norm is associated with the workers. Therefore, the claims that have to be defended are labor claims, not political or other claims. Understanding that with this people can paralyze, for example because of the war in Ukraine, is a caricature”, he questions.

Silva makes a similar reading. Although for her the strike “was not left with a last name”, it would be limited to work topics. The expert emphasizes that political or solidarity strikes are not recognized by the International Labor Organization (ILO).

“This scare that they are going to strike for anything is not so real either, because the strike implies by definition the suspension of the labor relationship, and that means that salaries are not paid. So, it’s not that the workers say so easily, ‘well, let’s go on strike,’” he exemplifies.

other spotlights

Beyond the issue of the strike, Albornoz emphasizes that the new Constitution “endorses the concept coined by the ILO of decent work”, which in his opinion is an adequate formulation of the social aspiration for more and better jobs.

Less optimistic is Lizama, who – in addition to concerns about the strike – is concerned about the article that establishes that workers will be able to choose the level at which they want to bargain collectively. “The management powers of the employer are severely limited by this constitutional rule, and if you add to this the right of unions to participate in business decisions, there will be many disincentives to make an investment in economic activities,” he says.

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