The tug-of-war over labour rights in Chile

Just days before celebrating another May 1st, a date of special significance as we remember the historic struggle for the demands of workers around the world; the project, proposed in 2017, “40 hours”, a legal initiative that sought to modify the Labour Code to establish measures to make the working day more flexible by distributing the hours of work based on a “weekly average of 40 hours”, in a cycle of up to four weeks, approaching the trend of the OECD, is approved in the country.

Official history tells us that in the middle of the 18th century in Great Britain, as a result of industrialisation as a method of chain production, many factories received workers before dawn and let them go at dusk, who worked under very poor conditions, especially hard on children.

Thus began a long trade union struggle that would gradually improve the working conditions, right up to the present day.

“40 hours”. Hope for many or the waiting room for the quality of life and wellbeing of workers?
According to figures from the OECD 2019, Chile was in sixth place among the countries with the longest working hours, with an average of 1,974 hours per year. Long working hours (in addition to transport) with working hours that negatively affect the lives of thousands of women and men, depriving them of time for family, social and personal development, living to work and not working to live.

The prevailing economic model establishes certain rules that limit bargaining power, discrediting the usefulness of unionisation.

As stated on the website of the Chamber of Deputies ( 04 April), the considerations that were taken into account when the bill was passed were “… to improve the quality of life of the country’s workers, as well as economic and productivity objectives ….”, as well as indicating “… that the law will enter into force gradually. Thus, in general terms, the programme considers: 44 hours, one year after the publication of the law; 42 hours, in the third year; and 40 hours, in the fifth year”.

The law starts with the inconsistency of excluding public sector civil servants from the benefit, making it paradoxical that it is the state itself that violates working conditions and, on the other hand, is the one called upon to oversee compliance with work regulations.

A separate case is the situation of the country’s teachers, whose status remains undefined, as they are not recognised as public employees, nor as private workers; and depending on the case, the worst available rules are always applied to them, unfairly disadvantaging them.

José Luis Ugarte, professor and researcher of Labour Law at the UDP, pointed out, in one of his social networks, that “the 40-hour bill allows things that are contradictory to the idea it claims: working hours of up to 52 hours a week, which will be paid as ordinary (with union agreement). More labour flexibility for one of the most flexible legislations in the world”, issues that are considered ambiguities by other professors dedicated to the study of labour law, especially those related to “labour adaptability”, “labour charge” and “labour deregulation”.

In the Michelle Bachelet government, the Labour Reform included the so-called “adaptability pacts”, as a way to introduce labour flexibility, allowing employers and unions to agree on working hours; pacts that were not subject to the rules of regulated collective bargaining and, therefore, workers do not have the right to strike, leaving in practice the decision to the employers.

Now, during the parliamentary process, there were changes installed by the right wing, making it possible to increase the maximum number of hours worked per week. In the case of a non-unionised worker, he could agree with his employer on a 45-hour working week. In the case of a unionised worker, the company, in agreement with the respective union, can agree up to 52 hours – this is the legal daily limit – without exceeding 160 hours per month.

Karla Varas, professor of labour law at the Pontificia Universidad Católica de Valparaíso, says “in addition, the regulation of the working day in Chile is very profuse and complex. Each productive sector has its own characteristics. As we do not have a strong trade union sector and collective bargaining that can take charge of specifying how each working day is to be applied, it is the law that takes on this task”. And Varas warns that “the new modality of agreement does not guarantee the balance of the parties, and this could be a problem”.
The current unrestricted power of employers is evident, in the face of a weak bargaining position of workers.

With regard to non-unionised workers, Sergio Gamonal, lawyer, professor and director of the master’s degree in labour law/social security at the Adolfo Ibáñez University, reflects that the adaptability formula of the bill raises doubts and, if it is approved, conflicts and distortions can be foreseen: “labour relations governed by the Labour Code are marked by the inequality of power, expressed in the subordinate status of the worker. Opening spaces for direct agreements in sensitive matters associated with minimum rights only increases the risks of labour precariousness or abuses”.

In this sense, he adds that, for the employee who needs to work or is afraid of losing his job, it would be laughable to think that he will be able to negotiate this working time clause in his contract. One of the only options left, is to accept it, and hope that the minimum legal guarantees associated with the right to rest or legal limits on work time will be respected. Or to trust that the Labour Directorate has the means and the conviction to carry out a strict and comprehensive control of labour legislation.

And ratifying these reflections, in recent days, the Court of Appeals of Santiago rejected an appeal for annulment against the sentence that applied a fine to a supermarket for not specifying the functions of the so-called “shop operators”. And we also learned from the Federation of Unions of Falabella Holding that approximately 7,000 workers were thrown out of the company between 2019 and 2022 for not signing or abiding by a contract based on the multifunctionality of the work. In the same line of super-exploitation, the company determined to cut wage costs by 5 percent by the end of 2023.

As long as the labour rights of millions of women and men continue to be violated in any part of the world, the struggle for labour justice and the search for balance in the capital-labour relationship will continue.
That is why we affirm:

Above all, the health, education, housing and full employment of my people. There is no state, no companies, no institutions, no economic models above. There are no commitments or debts that my people have not acquired. I will not say that only the powerful have the blame for all my ills. I, and my sister/brother, and my people will overcome our own weaknesses to overcome the infamy of the powerful. I will stand up in the face of injustice, exploitation, discrimination and violence. I will help my sisters and my people to stand up against injustice, exploitation, discrimination and violence. I will unite my loved ones, friends and partners. I will affirm the values of my people and despise the spiritual decadence of the powerful. I will affirm lucidity and despise drugs, alcohol and the propaganda of the decadent. I will affirm courage, compassion and solidarity and I will despise the cowardice, insensitivity and violence of the powerful.

Collaborators: M. Angélica Alvear Montecinos; Guillermo Garcés Parada; César Anguita Sanhueza and Sandra Arriola Oporto. Political Opinion Commission.

Partido Humanista de Chile