The Labour Reform Law 20,940, which was introduced in April 2017, focuses on reforming union rights. A centrepiece of the reform is the removal of an employer's right to replace personnel who go on strike with other workers. This amendment means that Chile is one of the only countries within the Organisation for Economic Cooperation and Development to remove this rule. In place of the 'right of replacement', a new rule was created that applies in the event of a strike, known as the 'minimum services' rule. This rule stipulates that minimum services must be provided by an emergency team comprised of workers who are members of the trade union that is engaged in collective bargaining.
The minimum services rule requires that the union bargaining commission provides the necessary personnel in order for a company to operate a minimum level of services. In this context, 'minimum services' are the functions strictly necessary to:
- protect a company's property and facilities;
- prevent accidents;
- guarantee the continuous operation of public services that affect the general welfare of, and satisfy the basic needs of the population, including those relating to the life, safety or health of people; and
- ensure the prevention of environmental or health damage.
In determining what constitutes 'minimum services' in each specific case, the requirements relating to the size and characteristics of the company, establishment or site should be taken into account.
The personnel assigned by the union to provide the company's minimum services should be workers involved in the negotiation process and are called the 'emergency team'. Emergency team workers must receive remuneration for the time worked.
In the event that the union does not provide an emergency team, the company may take the necessary measures to provide minimum services, including the hiring of external personnel. In such cases, the company must immediately inform the Labour Inspectorate body of the Labour Department, who will investigate if a breach has been committed. The employer cannot employ more emergency workers than those provided by the union unless authorised to do so by the Labour Inspectorate.
Minimum services and emergency teams must be defined and agreed before the start of the collective bargaining process. This definition must identify the minimum services that a company requires, as well as the number of workers and their professional or technical competencies necessary for the emergency team to function.
The employer must write to all existing unions in the company, at least 180 days before the expiration of the existing collective contract, detailing its definition of the minimum services and emergency team. The company must also forward a copy of the proposal to the Labour Inspectorate. If there is more than one collective body in the company, the 180-day requirement will apply to the collective contract that expires first.
In April each year the Labour Department must publish the general technical standards that are used as a basis for the qualification of minimum services and emergency teams.
The qualification may be revised if the conditions that led to its determination change, in accordance with the procedure set forth above. The request for review must be based on material circumstances, which must be outlined and proven by the applicant.
For further information on this topic please contact Germán Segura at Montt y Cia SA by telephone (+56 22 233 8266) or email ([email protected]). The Montt y Cia SA website can be accessed at www.monttgroup.com.