5. Right to Decent Work

• The notion of decent work has been developed by the ILO, and it ois understood as work in conditions of freedom, equity, safety and human dignity.
• The Constitutional proposal, in its chapter on fundamental rights, includes the right to decent work, which we review in this bulletin.

The “right to decent work” in the draft of the new Constitution

There are several elements included in the constitutional proposal that refer to this matter. We will address these elements below.

• Right to work: Every person has the right to work and free choice of employment.
• Working conditions: The State guarantees decent work and its protection. This includes the right to fair working conditions, to health and safety at work, to rest, to enjoyment of free time, to digital disconnection, to the guarantee of indemnity, and full respect for fundamental rights in the context of work.
• Remuneration: Male and female workers shall be entitled to equitable, just and sufficient remuneration to ensure their livelihood and that of their families. Everyone has the right to equal pay for equal work.
• Prohibition of discrimination: Discrimination between male and female workers that is not based on personal competence or suitability, as well as arbitrary dismissal, is prohibited.
• Other guarantees: The draft also adds guarantees in relation to the State’s duty to generate public policies that “enable the reconciliation of work, family and community life, and care work”. It also includes a rule for the protection of “the reproductive rights of workers, eliminating risks that affect reproductive health and safeguarding the rights of paternity and maternity”.
  It includes a specific mention of rural and agricultural work, stating that the State “must guarantee fair and dignified conditions for seasonal work, safeguarding the exercise of their labor and social security rights”.
  The constitutional draft recognizes the social function of labor and establishes that an autonomous body should be in charge of its supervision, in order to ensure effective protection of workers and trade union organizations.
  Finally, the proposal includes a ban on “all forms of precarious work, as well as forced, humiliating or degrading work”.

What does the current Constitution say about this?

The current Constitution establishes a series of guarantees in relation to this matter in its Article 19 N° 16:

• • Right to work: The Constitution ensures freedom of work and its protection for all persons.
  • Working conditions: Everyone has the right to free hiring and free choice of employment with fair remuneration.
  • Remuneration: Everyone has the right to free hiring and free choice of employment with fair remuneration.
  • Prohibition of discrimination: Any discrimination that is not based on personal capacity or suitability is prohibited, notwithstanding that the law may require Chilean nationality or age limits in certain cases.
  • Other guarantees: The Constitution currently in force, also establishes in its Article 19 N° 2 that “[…]In Chile there are no slaves and whoever steps on its territory remains free”.
    Finally, Art. 19 N°16 fourth paragraph of the Constitution states that “no kind of work may be prohibited, unless it is contrary to public morals, safety or health, or if the national interest so requires and a law so declares”.

Main developments and comments

• Right to work

Protection of the “right to work” is included in the proposed new Constitution. It is not clear whether this is limited to the State’s obligation to promote public policies that guarantee access to work, or whether it would extend to the right to keep a job, which would affect dismissals.

• Working conditions

By elevating the right to decent work to constitutional status, this notion can be used as a hermeneutic resource for all labor legislation. Labor legislation would need to be interpreted in the light of this concept.

Uncertainty arises as to the right to fair working conditions, with no limits being set to identify whether such right is to be understood within the same industry or branch, or within the same company or organization.

On the other hand, the right to disconnection, which has been recognized in recent labor legislation innovations (remote work law and law on digital service platform workers), is enshrined and elevated to constitutional status.

It is proposed to elevate the guarantee of indemnity to constitutional rank and broaden its concept, without establishing parameters in the norm that would allow its scope to be established, to which the labor tutelage procedure would also be applicable .

Moreover, the draft text guarantees full respect for fundamental rights at work, so that it could motivate a legal amendment extending the labor protection procedure – currently applicable only to the guarantees implicitly listed in article 485 of the Labor Code – to all fundamental rights applicable in the labor context.

• Remuneration

While the current Constitution already guaranteed the right to work with fair remuneration, the incorporation of the adjectives equitable and sufficient in the draft is evidence of the intention to strengthen the concept. It is not clear whether this right is enforceable against the State or the employer, how it is to be determined and what is meant by equitable, fair and sufficient.

It is also proposed to elevate the right to equal pay for equal work to constitutional status. It is not clear whether such equality should exist within the same company or organization or within the same activity or branch at national level.

• Prohibition of discrimination

The requirement in the Labor Code that at least 85% of the workers serving the same employer must be of Chilean nationality would be tacitly repealed.

The prohibition of “arbitrary dismissals” could have an impact on the practical application of the ground of ” needs of the company” and on the legal enshrinement of the ground of “written eviction by the employer”. This prohibition could also increase the possibilities of basing a complaint for labor protection of fundamental rights on the unfairness of the dismissal, with the additional severance and the sanction of not being able to contract with the State through public tenders for two years.

• Other guarantees

The constitutional proposal strengthens the State’s obligation to ensure the protection of the labor rights of agricultural and seasonal workers.

The recognition of the social function of labor and the guarantee of the protection of workers and trade union organizations through a supervisory body, a role currently fulfilled by the Department Labor Iwith respect to compliance with labor regulations, is elevated to constitutional rank. In addition, it places trade union organizations as entities that the State must protect in themselves, independently of their members.

Finally, the constitutional draft reinforces the constitutional protection of decent work. However, the criteria for determining what is to be understood as “precarious work” and which activities can be qualified as “humiliating or degrading” and therefore prohibited are unclear.

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Footnotes

1 The guarantee of indemnity is currently enshrined in the law in the following terms: “(…) The same applies to reprisals against workers for the exercise of legal actions, for their participation in them as witnesses or for having been offered as witnesses , or as a consequence of the inspection work of the Department of Labor” (art. 485, paragraph 3, final part, of the Labor Code).