14. Worker’s participation in company decisions

• The draft new constitution includes the right of workers, through their trade union organizations, to participate in company decisions.
• This means a change in relation to the current Constitution, in relation to what is meant by the power to manage a company.

In this matter the constitutional proposal states:

• Workers’ participation in company decisions: Workers, through their trade union organizations, have the right to participate in company decisions. The law shall regulate the mechanisms through which this right shall be exercised.

In relation to the above, the draft of the new constitution also provides:

• Right to property: Every person, natural or juridical, has the right to property in all its species and over all kinds of goods, except those which nature has made common to all persons and those which the Constitution or the law declares inappropriate.
• Freedom to undertake and develop economic activities: Every person and legal entity has the freedom to undertake and develop economic activities. Its exercise shall be compatible with the rights enshrined in this Constitution and with the protection of nature. The content and limits of this right shall be determined by the laws regulating its exercise, which shall promote the development of smaller enterprises and ensure the protection of consumers.

What does the current Constitution say about this?

The current Constitution provides guarantees in relation to this matter in Article 19 N° 24 and 21:

• Right to property: The Constitution guarantees to all persons the right to property in its various forms over all kinds of tangible or intangible goods. Only the law may establish the manner of acquiring, using, enjoying and disposing of property and the limitations and obligations deriving from its social function. This includes everything required by the general interests of the Nation, national security, public utility and health, and the conservation of the environmental heritage.
• Right to carry out any economic activity: The Constitution guarantees all persons the right to carry out any economic activity that is not contrary to morality, public order or national security, respecting the legal norms that regulate it.

Main developments and comments

• The enshrinement of this right implies a restriction to the power of disposal contained within the right of ownership, which traditionally our legal system has attributed exclusively to the owner.
• On the labor level, the recognition of this right means a change in the conception of the power of management, which is an expression of the rights of property and freedom to carry out any economic activity currently enshrined in the Constitution, a power that to date has been recognized exclusively to the employer, who can exercise it independently and sovereignly.
• A very broad reference is made to workers’ participation in company decisions, without specifying what matters it covers (capital, labor, means of production, safety, strategies, etc.) or to which bodies it refers, stipulating that the law must regulate the mechanisms through which this right is exercised.
• In the proposed terms, “negative freedom of unionization” would be affected, in particular the freedom not to join a trade union, since this right could only be exercised through a trade union, with the result that workers would not be able to participate in company decisions if they are not members of a trade union organization.
• Workers currently participate in the company through mechanisms such as: the Joint Health and Safety Committee, the Bipartite Training Committee, the right to periodic financial and specific information for collective bargaining, among others.

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