OEA/Ser.L/V/II.66
Doc.17
9 September 1985
Original:  Spanish

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

CHAPTER X 

LABOR UNION RIGHTS

 A.       GENERAL ASPECTS

1.       Article XXII of the American Declaration of the Rights and Duties of Man provides:

Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature.

2.       In turn, Articles 26 and 27 of the Inter-American Charter of Social Guarantees  [1] stipulate the following:

Article 26. Workers and employers without distinction as to sex, race, creed or political ideas, have the right freely to form associations for the protection of their respective interests, by forming trade associations or unions, which in turn may form federations among them.  These organizations have the right to juridical personality and to be duly protected in the exercise of their rights.  Their suspension or dissolution may not be ordered save by due process of law.

Conditions of substance and form that must be met for the constitution and functioning of trade and union organizations should not go so far as to restrict freedom of association.

The organization, functioning and dissolution of federations and confederations shall be subject to the same formalities as those prescribed for unions.

Members of boards of directors of trade unions, in a number established by the respective law and during their term of office, may not be discharged, transferred or given less satisfactory working conditions, without just cause, previously determined by a competent authority.

Article 27.  Workers have the right to strike.  The law shall regulate the conditions and the exercise of the right.

3.       Article 43 (c) of the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, reads as follows:

The Member States, convinced that man can only achieve the full realization of his aspirations within a just social order, along with economic development and true peace, agree to dedicate every effort to the application of the following principles and mechanisms:

C.       Employers and workers, both rural and urban, have the right to associate themselves freely for the defense and promotion of their interests, including the right to collective bargaining and the workers’ right to strike, and recognition of the juridical personality of their associations and the protection of their freedom and independence, all in accordance with applicable laws.

4.       In addition, with respect to the international law applicable to trade union freedom in Chile, it should be recalled that, notwithstanding the fact that Chile has not ratified ILO Conventions Nos. 87 and 98 (1948 and 1969), concerning freedom of association and protection of the right to organize and the right to collective bargaining, these rights are recognized in the Constitution of the ILO itself.  [2]

5.       Furthermore, it should be recalled that the ILO, when dealing with the problem of labor union freedom in Chile in general, pointed specifically to the basic principles to which all union legislation should conform, and in particular the following:  [3]

a.       The right to establish trade unions should be granted to all workers in the private and public sectors, including public servants.

b.       It should be possible to establish trade union organizations without previous authorization by the public authorities, and the legal formalities of establishing them, including the conditions for acquisition of legal personality.

c.       Workers should have the right to establish the organizations of their own choosing. Such organizations should have the right to further and defend their members' interests.  To avoid the disadvantages of a possible multiplicity of small and weak trade unions, however, it would be worth considering granting the most representative organizations special rights, mainly with regard to collective bargaining on behalf of a group or category of workers, their representative character being determined by objective criteria and procedures.

d.       Trade union organizations should have the right freely to establish federations and confederations, and such federations and confederations should have the same statutory rights as their affiliates.

e.       Trade union organizations should have the right, without official. Interference, to draw up their own rules, to elect their representatives in freedom, to hold meetings to discuss questions which concern them, and to decide on matters of internal management and action to further and defend their members' interests.  Freedom of expression should be guaranteed to all trends of trade union opinion.

f.        Trade union organizations should respect the law of the land, but the law should not be incompatible with the principles of freedom of association.  Trade union organizations should not be liable to suspension or dissolution by administrative authority.

g.       Workers, and in particular trade union leaders and other representatives of the workers in the undertaking, should enjoy adequate protection against acts of anti-union discrimination in respect of employment.

B.       THE LEGAL SYSTEM

a.       Labor Union Legislation in force in Chile before September 11, 1973

6.       For the purposes of this chapter, it is advisable to examine briefly the status of labor union rights in Chile before the change of the political system in 1973.  The Commission believes that in this way it can more effectively help to establish the behavior of the Government of Chile with respect to labor union freedom during the lengthy period covered by this report, and especially to ascertain whether or not, within the new order that came into being in 1973, Chilean policy in labor matters has been aimed at accomplishing the objectives set forth in the American Declaration of the Rights and Duties of Man.

7.       The 1925 Constitution of Chile granted all the inhabitants of the Republic “the right of association without prior license, and in conformity with the law” (Chapter III, Article 10, (5)). Article 10 (14) confirmed freedom to work and job protection; the right to association in labor unions and the right to strike “in accordance with the law”.  It also recognized the right of labor unions, federations, and confederations to juridical personality “by the mere act of registering their charters and bylaws in the manner and under the conditions determined by law”.  Finally it provided that labor unions are “free to accomplish their own objectives”.

8.       For their part, the principal provisions concerning labor unions were contained in the 1931 Labor Code and the subsequent amendments thereof.  In addition to the Code there are several laws and decrees with force of law in which agricultural labor matters were extensively regulated.  [4]

9.       Book Three (Title I) of the Code dealt with “Labor Union Associations.”  In principle, Article 365 granted the right of association in labor unions “to persons of both sexes, over 18 years of age,” who worked in one and the same enterprise or work place, or who were engaged in one and the same trade or occupation or similar or related occupations, whether manual or intellectual.

10.     A distinction was made between unions of employers, of employees, of manual workers, mixed unions and unions of self-employed persons (Article 366).  However, unions were either industrial or occupational (idem).

11.     According to Article 367, unions were defined as “institutions for mutual collaboration between the factors that contribute to production”.  Therefore, organizations whose procedures hampered work discipline were considered contrary to the spirit and rules of the law.

12.     Unions were entitled to acquire and hold (Article 371) property of all kinds on any title.

13.     In accordance with Article 374 unions were prohibited from accomplishing objectives other than those specified in the Labor Code and their own bylaws or to perform acts designed to impair individual freedom, freedom to work and that of industries, in accordance with the Constitution and laws.

14.     Persons who wished to organize a union were required to notify the corresponding labor inspectors (Article 375).  No person was entitled to be a union official unless he was a Chilean citizen, above 18 years of age and had not been convicted or was not being prosecuted for a crime or misdemeanor (Article 376, a, b, c).

15.     Labor unions were considered legally constituted once legal personality had been granted them by the President of the Republic, for which purpose they were required to apply for it to the Labor Directorate (Article 382).  Once legal personality was obtained, the labor union was required to be registered in the National Labor Union Register of the Labor Directorate (Article 383).

16.     The Code differentiated (Articles 384 to 414 of Title II) industrial unions from occupational unions and deals with their purposes, boards of directors, and assets.  Overall, these provisions were aimed at making union rights effective and securing the benefits of association.  Thus, for example, Article 390 provided that the boards of directors of unions were to be elected by cumulative vote, in general meetings of members, and by secret ballot.

17.     In the case of occupational unions, that is to say, associations formed by persons engaged in the same occupation, industry or work, or similar activities (Article 410), they could establish unions or confederations for the defense of their common interests under Article 414.  These confederations needed legal personality in the same way as the unions themselves, and were not entitled to represent the unions until they had obtained that personality (Article 414, (2))  [5]

18.     The purposes of both industrial and occupational unions, as defined in Article 417 (1) were as follows:

a.      To enter into collective labor contracts;

b.       To represent workers in their individual labor contracts and in the exercise of their rights arising from those contracts;

c.       To represent workers in collective conflicts and on conciliation and arbitration boards;

d.       To undertake cooperative, commissary, cultural, insurance and social welfare, or mutual aid activities.

19.     Article 415 regulated the, dissolution of labor unions, and federations and confederations thereof, namely: i) it was to be decreed by the President because of the circumstances exhaustively specified in the Code and ii) it did not affect unions that formed part of the federations, etc., if that were the case.

20.     In Book IV (Title I) the Labor Code provided for all matters relating to labor courts and tribunals (Article 495); procedure in the case of complaint (Articles 517 to 560); appeal of judgments (Articles 561 to 573); execution of judgments (Arts. 574 to 576); and judicial personnel (Articles 579 to 587).

21.     With respect to collective labor disputes (Articles 589 to 596) the Code stipulated: “In any enterprise, establishment or work place with more than 10 manual workers or employees,” work could not be interrupted inopportunely, either by employers or employees, until the conciliation procedures provided for in the Code (Art. 589) had been exhausted.  This procedure (Articles 609 to 614) granted the parties appropriate means for asserting their points of view and reaching an agreement through joint meetings of the parties concerned and their representatives (Article 611).

22.     The Code defined the right to lockout (Article 615) as the “forced unemployment of workers or employees of an enterprise ... caused... by order of an employer”.

23.     The right to strike was dealt with in great detail in the Chilean Labor Code. First, Article 627 provided that, when all negotiations for settlement had failed, the union could declare a strike provided the circumstances mentioned in the same article prevailed.  Those circumstances were: i) the denunciation of the collective labor contract in question; ii) the strike decision was taken by secret ballot in which two-thirds of the members of the labor union participated and by an absolute majority of the members voting.  The omission of any of these requirements nullified the declaration.  The same conditions were required for “lockout” in the case of trade associations (Article 628).

24.     In addition to the above-mentioned limitations or requirements, the Code stipulated (Article 626) a general limitation of the right to strike  [6] (Articles 14 to 33), as did Law No. 16,225 of 1967 (Articles 24-33), in that the government could order resumption of the operations as required by the general interest; however, this measure required a prior special decree that would give the grounds for the measure or indicate whether the strike “directly endangered the health or socio-economic life of the population.”  [7]

25.     Finally, the Code contained provisions (Articles 634-635) on offenses against freedom to work, that is, threats against a worker or employee, whether by the labor union or confederation or pressure on him; acts to prevent attendance at work, and destruction of materials, etc. in work places.

26.     Accordingly, it is possible to infer that, before September 11, 1973, there was in Chile an internal legislation, both constitutional and legal that stipulated the basic guarantees and principles recognized for the exercise of union freedom.  In particular, the right to organize unions, federations or confederations of workers, as well as the rights to collective bargaining, collective labor disputes, and strike were fully recognized and regulated by the legal system of the country without any limitations other than those necessary in a democratic society.

a.                Principal Decrees and Legislative Measures Enacted Immediately after September 11, 1973

i.        Dissolution of the CUT

27.     Under Decree Law No. 12 of September 17, 1973, the legal personality of the Sole Federation of Workers (CUT)  [8] was revoked and on November 13, 1973 the organization was dissolved pursuant to Decree No. 133 of the Ministry of Labor and Social Security.  [9]  The legal personality of the CUT had been recognized by Law No. 17,594 of December 31, 1971, together with the various provisions applying to that Federation.  The last-mentioned decree stated that the dissolution of the CUT was necessary since the liquidation of the assets of the organization and the appointment of a beneficiary was not envisaged in its statutes; the then Director of Labor was appointed liquidator pursuant to Decree No. 325 of 1964 mentioned above.

ii.       Proclamation No. 36

28.     On September 18, 1973, Proclamation No. 36 was issued and dealt with all workers, whether manual workers, employees, technical or professional personnel.  This proclamation of the Military Government Junta set forth specified labor guidelines, according to which all persons who could be considered “activists”, “saboteurs”, “criminals” could be dismissed from their jobs or employment, in accordance with the provisions of the Proclamation.  In addition, and until future provisions were adopted, the following were suspended pursuant to Proclamation No. 36.  Conciliation boards, the Central Wages Committee, collective labor disputes or petitions for a change in working conditions; the validity of any agreement that was the result of collective bargaining or of arbitral award or other existing labor policy instruments; the activity of unions in matters of conciliation or collective labor conflicts, and the right to strike, although other activities could be carried out but always subject to the natural restrictions of the state of siege; absence from work from one’s employment or in the unions could not be authorized; union meetings could not be held after working hours, and any other union activity that did not have statutory bases such as the so-called “vigilance committees” was prohibited.

29.     It should be pointed out that in Proclamation No. 36 the Government again reaffirmed its desire to respect the rights of workers, establish social justice without any discrimination, and combat unemployment.

iii.       Decree No. 32

30.     This decree  [10] established special labor courts and amended the provisions of the Labor Code relating to grounds for dismissal,  [11] terminations of employment contracts, and which formed part of the decrees additional to the 1931 Labor Code and the immunities of labor unions.  The preamble of Decree No. 32 referred to the need to restore the principle of discipline.  [12]

31.     In short, the decree stipulated that:

a.       Dismissed workers could only complain to a special court that operated in each territorial department of the country and was composed of a competent labor judge, a member of the armed forces, and a labor inspector.

b.       The grounds for dismissal were the following; Commission of any illegal act that could prevent workers from working (without specific definition of the nature of such acts); destruction of materials, tools, merchandise, or acts that reduced their value; to direct or participate in the interruption or suspension of work activities; incitement to the destruction of facilities or to interrupt their operation by any means; to have taken part in, or directly effected, the concealment of weapons.

c.       The special courts, in summary proceedings, and without the right to appeal, heard and decided any dismissal complaint.

32.     It should be noted that, although the establishment of special courts was later suspended by Decree No. 676  [13], the above-mentioned additional grounds for dismissal of workers were kept in effect after 1975 pursuant to Decree No. 930 of March 15, 1975.  [14]

iv.      Decrees No. 6 and 22

33.     Under these decrees (enacted, respectively, in September and October 1973), all public sector personnel were made temporary employees.  In this regard Decree No. 22 provided that all employees were provisional appointees or could be discharged. Decree No. 193 of December 1973 established special committees, composed in each case of the governor of the territorial department, a representative of the armed forces and a representative of the department in which the employee worked, to consider complaints against dismissals in the public sector.

V.       Decree No. 43

34.     The purpose of this decree was to suspend all the provisions in effect, regardless of their origin, relating to the determination of wages, in both the public and the private sector. [15]  In this regard it should be noted that Decree No. 97 of October 2, 1973 regulated wages and cost of living increases but repealed other earlier agreements on automatic increases in effect since 1960.

vi.      Decree No. 198

35.     This decree of 10 December 1973,  [16] established a new labor code, if it could be so designated by reason of the series of provisions it comprised. In brief, it provided that:

a.       Unions of manual workers and employees would be regulated by the provisions in force except as provided in the decree itself, which replaced or amended them as appropriate;

b.        Any political activity in unions was prohibited;

c.       Union meetings could be held (while the state of siege was in effect) solely for the purpose of information or internal management of the union itself; they were to take place after working hours and to comply with the curfew; the place, time and agenda of the meeting was to be communicated in writing to the nearest section of Carabineros at least two days before the prospective meeting.

d.       All appointments of union officials were to be communicated to the pertinent labor inspector or to the public authority and that authority could object to appointments on the grounds that “the person concerned was unsuitable in accordance with the provisions of the decree itself”.

e.       Vacancies in the union committees were to be filled automatically by the most senior members of the union.

36.     These were the most important measures adopted by the Government of Chile that directly related to the right of association and union freedom during the initial period following the military coup.

37.     There is no doubt that, among these measures, one of the most important, because of its scope in the labor field, was the dissolution of the CUT and the total liquidation of its assets.

38.     The Government of Chile gave as a reason or ground for that dissolution the fact that the CUT was not a labor union organization proper, but rather a political organization and that its purposes were those of imposing a Marxist-Leninist government on Chile; that its leaders had been fraudulently elected; and that, in general, it depended on State support.  In this regard the Government of Chile stated that labor unions in the country had been giving priority to illegal activities contrary to the social and economic interests of the country.  [17]

39.     Under its Note of October 20, 1975, the Inter-American Commission on Human Rights sent to the Government of Chile a questionnaire concerning the measures that Government had adopted on the right of association and union freedom. Among the questions asked on that occasion, mention should be made of the application of Decree No. 198 and whether the Government of Chile had implemented the recommendations made by the ILO, through the Commission that had visited Chile.

40.     As recorded in the Second Report on the Situation of Human Rights in Chile,  [18] the Government of Chile did not reply to that questionnaire, alleging that the questions asked did not refer to specific or particular cases.  [19]

C.       Decree Law No. 2,200 of 1978

41.     On June 15, 1978, the Government of Chile enacted Decree Law No. 2,200 establishing Rules relating to Employment Contracts and the Protection of Workers.

42.     This Decree Law has the character of a labor code designed to replace the 1931 Code.

43.     Although a further analysis will not be made of this decree law, whose full validity was extremely short since it was later substantially amended by Decrees Nos. 2376 of 1978; 2759 and 3355 of 1979; 3648 of 1981 and by laws No. 18,011 and 18,032 of 1981 and No. 18,372 of 1984, the following should be pointed out:

a.       It eliminated the distinction between unions of employees and of manual workers provided for in the Labor Code;

b.       It emphasized individual contracts (Articles 7-29) whereas collective labor contracts are covered only by the last four paragraphs of Article 60;

c.       It gave the employer an advantageous position with respect to the breaking of the individual labor contract and the consequent dismissal of the worker concerned;

d.       It did not contain any provisions relating to collective labor disputes or, in particular, to the right to strike in the terms provided for by the 1931 Code (Articles 630 and 631).

d.       Decrees No. 2,345, 2,346 and 2,347

44.     On October 19, 1978 the then Minister of the Interior of Chile in a radio and televised address announced a series of measures adopted by the Government in the labor field.  They included the enactment of a decree law granting the Minister of the Interior special powers to “recommend to the President the dismissal of any official who, by commission or omission, prevented the exercise of civic rights, or to eliminate or simplify, in the various departments of state, unnecessary bureaucratization and procedures incompatible with modern society”.  Likewise, in the above-mentioned address, the Minister stated that the Government had decided “to dissolve, because they are illegal, seven labor union associations with a clear Marxist orientation that are still in operation and to impose penalties on any labor union organization that operated in the labor field without proper authorization”.  [20]

45.     Indeed, Decree No. 2,345 of October 17, 1978, granting discretionary powers to the Government in the matter of dismissals from the civil service and State enterprises, directly affected union officials since, according to Article 5 of the above-mentioned decree, the powers conferred on the Ministry of the interior would not be limited by earlier provisions or statutes of any kind, and therefore those leaders of the public sector could be dismissed simply by a decision of the Executive.

46.     The above-mentioned Decree 2,345 of 1978 was also a kind of serious warning to the labor union sector of the civil service and State enterprises that their right to work would not have any legal protection in the future.  The National Association of State Employees (ANEF), commenting on Decree No. 2,345, stated the following: “Apart from the fact that this decision of the Government is an extension of the same type of power as those granted to the Minister of Finance in 1976 to dismiss public employees, it is difficult to explain that for more than four years the Government has been de-bureaucratization the government apparatus, since there have been continuous mass dismissals of employees and many departments have been eliminated or are in the process of being eliminated, as in the case of CORA”.

47.     A communication or complaint presented to the ILO by international labor union organizations alleges that, pursuant to the above-mentioned Decree No. 2345, the local labor unions of the public sector have been dissolved and their officials have been dismissed from their posts.  [21]

48.     As for Decree No. 2,346 of October 17 1978, its legislative function was to dissolve seven labor union federations and the labor unions that were members of them, numbering about 550 [22], as well as to confiscate their property and to prohibit civil servants and the staff of State enterprises from organizing unions.  It complemented Decree No. 2,345, which was of the same repressive nature or at least severely limited union freedom and especially the right to organize.

49.     The Annual Report of the Inter-American Commission on Human Rights to the 1978 General Assembly of the OAS [23] referred to the fact that the Government of Chile had reported the suspension of the application of Decree No. 2,346.  However, the Minister of the Interior of Chile had stated in October 1978, that is to say, subsequent to the reports supplied to the Commission, that the purpose of dissolving the unions was to enable “workers to be represented by authentic union leaders.”  [24]

50.     Decree Law No. 2347 of October 17, 1978 defined a new offense against the security of the State and made it subject, as regards jurisdiction and procedure, to the provisions of title VI of Law No. 12,927 of August 6, 1978 on State Security (Article 2).  Article 1 of Decree No. 2347 declared any association or group that without having legal capacity (legal personality) assumed the representation of workers to be contrary to the security of the State.  The Decree imposed the penalty of imprisonment in its medium and maximum degrees on offenders.

51.     This Decree, like those mentioned above, had an immediate impact on union organizations since, as a result of its enactment, 35 labor unions became illegal and their officials were liable to legal penalties.

e.       The “Labor Plan”

52.     The Labor Plan groups a number of decrees laws enacted by the Government of Chile in June and July 1979 that were designed to establish a more stable “juridical order” in the labor area, most of which replaced in whole or in part the provisions in force since 1973.

53.     For its part, in presenting the Plan, the Government of Chile stated that it embodied for the first time “the bases of a democratic labor union movement.”  [25]

54.     The Labor Plan basically comprised the following decree law: Decree Law No. 2756 of June 29, 1979 establishing rules for labor union organization; Decree Law No. 2758 of the same date, containing provisions on collective bargaining; Decree No. 2760 of July 1979, containing provisions for the defense of free competition; and Decree No. 2755 of June 29, 1979.  Subsequently, the Government enacted other decrees, which the Commission will refer to, once a brief examination has been made of the principal characteristics and scope of the above-mentioned decrees.

55.     Because of their special importance, Decrees 2756 and 2758, which deal with union organization and collective bargaining. Will now be examined separately by the Commission

f         Decree No. 2756 on Union Organization

56.     It should be pointed out that Decree No. 2756 again established in Chile the right to association, that is, to form unions of workers for the defense of their interests and therefore repealed Decree No. 198 of 1973 which had been criticized.

57.     Despite the apparent purpose of the Decree, the fact is that it contains serious limitations on the freedom it claimed to guarantee, since the unions could not be organized unless one year had elapsed since an enterprise had begun operations (Article 8).

58.     In accordance with this decree, a union could be declared dissolved without any type of proceeding, pursuant to Articles 54 and 55, whenever requested by an employer, the Government (Ministry of Labor) or any interested person, which in actual fact made the union organization forever provisional.

59.     It indirectly (Articles 10 and 11) established limitations on the organization of unions by imposing minimum percentages of the number of workers necessary for forming a trade union at between 10 percent and 15 percent of the staff, depending on whether a union of an enterprise, a union of an establishment, or an inter-enterprise union, respectively, was involved. in application of the above-mentioned provisions, this could mean that, to organize a union, the participation of a very high number of union members would be necessary if the minimum number of members were increased.

60.     It also limited the meetings of unions since, according to Article 46 of the Decree, they could only be held in the headquarters of the union, and public meetings in streets or assembly rooms were prohibited.

61.     A positive factor was that Decree No. 2756 was a notable step forward compared with Decree No. 2,376 of 1978, which prohibited the existence of labor unions of the second degree.  In accordance with Article 13 on legal personality, the Decree provided that a union would acquire that personality at the time it deposited its bylaws; nevertheless, Article 14 granted Labor Inspectors the power to object to the organization of a union, which appeared to be a discretionary power of the authorities, contrary to the basic principle of the right to organize unions in accordance with the law, which must serve to facilitate that organization and not to impede it unnecessarily.

62.     The Decree prohibited union federations or confederations from participating in collective bargaining and signing collective labor agreements, which seriously impairs minimum union freedom.

63.     The decree also establishes a certain number of detailed requirements for the election of union officials, in accordance with Article 20.

64.     One of the most disputed questions relating to Decree No. 2756 of 1979 is the right of employers to appeal against resolutions of the administrative authorities declaring the juridical incapacity of unions, which remedy has to be filed with the civil courts to which reference is made in Article 23 of that decree.  [26]

g.       Decree No. 2758 on Collective Bargaining and the Declaration of Strikes

65.     As indicated at the beginning of this chapter, the right to collective bargaining is one of the basic elements of the content of the right to union freedom, recognized in ILO Convention 98 (1949), which, although it has not been ratified by Chile, was recognized by pre-1973 legislation in the Labor Code (Articles 589 et seq.).

66.     This matter was regulated by Decree No. 2758 of June 29, 1979, which reestablished the right to collective bargaining in Chile.  The principal characteristics of the above-mentioned decree are summarized below.

67.     Articles 4-7 limit collective bargaining to factory level unions and therefore negotiations through federations or confederations of workers are not covered by it. In practice this establishes a limitation that, apart from excluding a large labor sector from that right, weakens the defense of labor interests through collective bargaining that should be guaranteed throughout the trade union spectrum, which is against the provisions of the International Covenant on Economic, Social and Cultural Rights (Article 8) and the International Covenant on Civil and Political Rights (Article 22).

68.     It also excludes (Article 7) from collective bargaining workers engaged in the administration of the State and of public or private enterprises, more than 50 percent of whose budgets are financed by the State; as well as of public utility services they may be even though administered by the private sector.

69.     It also prohibits (Article 6) strikes by workers in enterprises the shutdown of which will cause damage to health, the provisioning of the population, and the economy of the country or national security.  With this broad range of prohibitions, whose application is so ambiguous, the above-mentioned article is in fact a prohibition of the right to strike in almost the entire labor area, in contravention of the principles of union freedom to which we have referred.  Thus, for example, the list of enterprises in this category that was published by the Government of Chile in 1982 contains 41 enterprises.  [27]

70.     Article 12 determines the issues that may be the subject of collective bargaining and excludes such matters as the obligation of employers to pay strike days and the establishment of union funds for giving benefits to workers, financed in whole or in part by employers.  However, which matters may or may not be negotiated is not clearly defined in the decree; this has given rise to many discussions about the scope of this provision of Decree No. 2558, and workers have had to resort to the Labor Inspectorate, which has delayed or impeded collective bargaining.

71.     Article 52 deals with the declaration of a strike, assuming the failure of collective bargaining, and stipulates that a strike may only be called by the vote of a simple majority of the workers involved in the negotiations.  It excludes the possibility of strikes by federations or confederations since, as we have seen, they cannot (pursuant to Articles 4-7) take part in collective bargaining. In this regard, we reiterate what is stated in section a to the effect that such a limitation is unacceptable, since the right to participate in collective bargaining must be broad and consequently the right to strike must also be broad when bargaining fails to the detriment of the interests of workers.  The exercise of one right is closely coupled with that of the other.

72.     Articles 58-62 grant employers authority to hire the necessary personnel to replace or make up for the workers on strike.  Thus it provides that after 60 days of strike any worker is considered to have voluntarily renounced his job or employment.

73.     Finally, Article 65 deals with strikes or lockouts, which, because of their circumstances, can damage health, the provisioning of the population, etc. In these cases, the President can order resumption of work for a period of 90 days. But, in addition, it should be pointed out that, pursuant to Article 86 of Decree No. 2758, the Law on State Security (No. 12927) is amended by increasing the cases or situations in which the Executive can order resumption of work, with the participation or intervention of the military authorities, and all negotiation is immediately suspended and the strikers must return to work on the same terms as before the strike occurred.  There is no need to mention the abuses and arbitrary acts that such a provision may give rise to.