Fernando Arab: The implications of the ruling of the Constitutional Court on labor reform

May 11, 2016
Radio Cooperativa – Cooperativa online
To listen to the full interview click here.

The Constitutional Court published the complete failure of its decision to the request submitted by deputies and senators of Chile going against Proyecto que Moderniza las Relaciones Laborales on Monday, a labor reform promoted by the Government. Despite approval by Congress, the Constitutional Court declared two key aspects of the initiative contrary to the Constitution: the union title and the automatic extension of benefits. The Government claimed that the unions were the only organization authorized to carry out collective enterprises into negotiations, but the Constitutional Tribunal empowered the coexistence of parallel negotiating groups.

“These are groups of workers who come together for the sole purpose of collective bargaining. They are workers who are not interested in forming a union or join a union for various reasons, but they are interested in obtaining benefits collectively” explains Fernando Arab partner Morales & Besa, a former undersecretary of Labor and academic at the Catholic University.

From the trade unions movement perspective this decision will weaken the organizations. “I work at a steel company and we had two strikes. We stand at the gate and prevented the entry of strikebreakers, the people who were not trading. Of course, today we are fortunate that we have 100 percent the production workers, but what about other companies where 50 percent are not in the union? There is no incentive to be in the union, because there may be a negotiating group or the employer can transfer all the benefits at once ending negotiation, “the other employees, exemplifies Horacio Fuentes, union adviser and current president of CONSTRAMET. By declaring the automatic extension of benefits by membership syndicated unconstitutional, the Constitutional Court ruled that before a collective bargaining there must always be agreement between workers and companies to do so.”

“It requires a prior agreement between the parties, without an agreement between the parties none can extend (the benefits). Neither the employer nor the union by means of union membership is able, “assessed Luis Lopez, Sofofa labor lawyer and professor of law at the University of Chile.

Government to balance the initiative

After learning of the decision of the TC-before publication of the judgment completo the Government announced its decision to resort to a presidential veto to eliminate the requirement that the union, to bargain collectively, should have the same number of workers constituted. The government also seeks to suppress adaptability pacts on working hours, overtime and passive conferences, among others. On the eve spokesman Minister Marcelo Diaz reiterated that the Government’s intention is to “balance” the project following the decision of the Court, in order to “advance in protecting and strengthening the rights of workers”.