The Labor Directorate (DT) issued an opinion that provides new perspectives on the change of union affiliation.
On June 12, 2023, the Labor Directorate (DT) issued Opinion No. 838/28 which reconsiders the doctrine referred to the application of collective instruments in the hypothesis referred to in Article 323 paragraph 2 of the Labor Code.
Said article states: “Notwithstanding the change of union affiliation or disaffiliation, the worker shall remain affiliated to the collective instrument negotiated by the union to which he/she belonged and which is in force, having to pay the total of the ordinary monthly dues of such union during the entire term of such collective instrument. At the end of the term of the collective bargaining agreement of the union to which he/she was affiliated, the employee will be subject to the collective bargaining agreement of the union to which he/she was affiliated, if such union exists”.
As a result of the above, a trade union organization requested to reconsider the doctrine contained in Ordinary No. 4079 dated August 23, 2019 in the part that denies the right to bargain collectively to workers for being subject to a collective bargaining instrument in force subscribed by the trade union organization to which they were affiliated, and who subsequently joined another trade union organization that initiated a process of regulated collective bargaining before the end of the collective instrument that links them to the original trade union.
from a union with which they had a collective bargaining agreement in force could not be part of another bargaining process, unless the presentation of the draft collective bargaining agreement of the union with which they subsequently affiliated was made at the time when it would have been appropriate for those workers to negotiate.
Therefore, the Labor Directorate indicates in this opinion that “while the legislator itself recognizes the manifestation of union freedom to freely affiliate and disaffiliate from any union, it provides for the exceptional situation of a worker who exercises that right while already subject to a collective bargaining process in progress or already concluded“.
It continues “In this sense, it states that such worker shall remain subject to the collective instrument negotiated by the union to which he/she belonged, having to pay the union dues of such union during the entire term and becoming subject to the collective instrument of the union to which he/she had affiliated, if any, only at that time“.
Adding further on that “it is Article 323, paragraph 2, which distinguishes between being subject to a bargaining process and to a collective instrument, regulating only the link to the collective instrument and not to collective bargaining. So much so that the third paragraph of the aforementioned provision uses the expression “as well as” to differentiate between the two situations”.
Therefore, the administrative agency concludes that “the aforementioned article 323 in no part establishes an exclusion or prohibition of collective bargaining of a worker who, being subject to a collective instrument, decides to join another union organization that initiates a bargaining process, but rather the rule regulates the effects of such collective instrument. In this sense, it cannot be intended to extend a specific effect to a prohibition and restriction to the exercise of collective rights derived from the Freedom of Association and in particular, in a norm whose only function is to establish a rule of the effect of the instrument, but which says nothing about the prohibition or exclusion of such workers from being part of the negotiation process of the union to which they subsequently affiliated“.
In short, it is considered appropriate that a worker who, making use of the freedom of association, disaffiliates from the union with which he/she has a collective bargaining agreement in force, and joins another union organization, participates in the collective bargaining process initiated by the latter.
In this way, it has all the rights, guarantees and prerogatives of the Freedom of Association. The above, bearing in mind, however, that the collective instrument subscribed with the latter union will be applied once the term of the collective contract or agreement of the union to which he/she previously belonged has expired.
For more information on these topics, please contact our #azLabor group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Associate | fneira@az.cl
