By Cristián Olavarría, Firm: Munita & Olavarria
The Chilean Labour Inspectorate has ruled that employers cannot use provisional supply personnel to replace striking employees.
The Chilean Labour Inspectorate has ruled regarding the scenario where companies and unions agree on the use of emergency teams made up of provisional personnel. The emergency teams are used, among other things, to allow all employees involved in a collective bargaining process to exercise their right to strike.
During a strike in Chile, the union’s negotiating committee must enable personnel to deliver the minimum level of service necessary to protect the assets and operations of the company, prevent accidents, ensure the provision of public utility services, meet the basic needs of the public (including those relating to public health and safety) and ensure the prevention of damage to the environment or to public health. The definition of ‘minimum level of service’ should be agreed upon by the parties in preliminary negotiations. If no agreement can be reached, the matter should be resolved by the Labour Inspectorate, and the decision will be appealable before a labour court.
The Labour Inspectorate concluded that contracts for provisional supply of personnel can only be entered when the main company meets any of the circumstances expressly described in article 183-Ñ of the Labour Code. These do not include any circumstance relating to a strike taking place.
In addition, this position is reinforced by article 183 P) letter b) of the Labour Code, which states:
‘Notwithstanding the provisions set forth in article 183-ñ, provisional service employees may not be hired in the following cases:
(b) to replace employees who have declared a legal strike as part of the relevant collective bargaining process.’
Moreover, the Labour Inspectorate had previously ruled regarding this matter as follows:
‘It is not appropriate for a provisional service company to provide a main company with employees who are necessary for the execution of work or services interrupted as a result of a strike of the main company’s workers, since such a measure would imply replacing the latter, which is expressly prohibited’.
Consequently, employers should note that the use of employees from a provisional service company in strike situations is not permitted.