Court accepts lawsuit for misuse of union privilege by incurring in an anti-union practice. In addition to harming her employer by his abusive actions.
On June 6, 2024, the 1st Labor Court of Santiago (case RIT S-58-2023) declared that the privilege that protects a union leader is unenforceable against her employer. This after having been obtained for a merely instrumental purpose and with abuse of the right.
Thus, the lawsuit that gave rise to the ruling is related to an action for anti-union practices filed by an employer against one of its employees.
The latter allegedly held the position of leader of an inter-company union, whose name she did not know, and of a federation, alleging that she exercised in bad faith and/or in an abusive manner the union privilege she had, since she had never carried out any union activity whatsoever, thus exercising the privilege for her sole and exclusive benefit.
Subsequently, the employer states in its complaint that the respondent has asserted its privilege in the manner established in Article 225 of the Labor Code, and that it received the respective communication sent by the union organization, which stated that it had been elected as a leader of the federation and that it therefore enjoyed the benefit of this union privilege, thereby generating arbitrary discrimination in its favor.
Furthermore, since the law does not limit the number of directors that this type of organizations can have, unlike what happens with the base unions, what is generated is “a formally suitable way to ‘forge’ a multitude of privileges for those who deem convenient to take advantage of any of them”.
This every time that these superior organizations, protected under the “union freedom”, exist to generate “In an artificial way the privileges that their leaders assert before the different companies, which also denotes that they have not been constituted and/or develop in the legal life in order to pursue the purposes inherent to this kind of organizations, but only exist for personal and selfish purposes of those who appear as their leaders in order to obtain labor immovability, that is, to ‘forge’ them a privilege”.
Finally, the plaintiff argues an absolute lack of existence of union activity, both of the base union and of the federation and especially of the worker to whom this action is directed.
In addition to the foregoing, the plaintiff explains that it has never received any request from them, that there are no other workers affiliated with these organizations besides those who are leaders of them, that the defendant has never requested a union leave and that the defendant has never requested that union dues be deducted.
Consequently, the background information as a whole shows that she has a union leave of absence that she does not use for the purposes that have been legally and doctrinally conferred to her.
Having said the above, the court, in resolving the conflict, establishes that in practice it is possible to state that there are indications of the facts on which the complaint of anti-union practices is based, which have not been disproved by the defendant with its evidence, since the latter:
“She does not perform any union activity from 2018 to the date of filing of the lawsuit, thus failing to comply with the purpose of the position for which she was elected, since she does not act in representation of the interests of the workers with whom she shares her work, which is the reason for which she enjoys union privilege”.
Therefore, “it is possible to conclude that she has made an instrumental use of the union privilege she enjoys, since that benefit has been granted precisely to protect her as the representative before her employer of the workers who have elected her to be the spokesperson in the defense of their rights”.
And as a result of this, “the privilege that she is entitled to can and should be disregarded by the plaintiff, and therefore it is unenforceable, having been obtained for a merely instrumental purpose”.
Thus, the court of first instance resolves that, in this particular case, the defendant has engaged in an anti-union practice. In addition to harming her employer by her abusive actions, as she enjoys a union privilege that prevents her from fully exercising the powers that the law recognizes her.
For more information on these issues please contact our labor team:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Catalina Díaz | cdiaz@az.cl
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