It is an opinion that limited the scope of the rule restricting collective bargaining, leaving out of this restriction the entities that provide services to the State.
The Labor Directorate (DT) will once again generate debate and conversation among experts, companies and union organizations. The reason? Its change of doctrine regarding article 304 of the Labor Code, which establishes that there can be no collective bargaining in companies or public or private institutions whose budgets, in any of the last two calendar years, have been financed in more than 50% by the State, directly or through duties or taxes.
The last time the service ruled on this issue was in 2019, when the former director of Labor in the second administration of Sebastián Piñera, Mauricio Peñaloza, issued an opinion that broadened the scope of this prohibition.
On that occasion, Peñaloza stated that the restriction applied regardless of whether “the provision of funds had been granted to them free of charge or implied the obligation to make a consideration in compensation for such financing”.
What were the consequences of this? That the limitation on collective bargaining would apply to all entities in which more than half of their budget was of fiscal origin, regardless of the form of the transfer of resources.
Based on internal information, the DT explained at that time to DF that some of the companies whose staffs would face the restriction were the Sociedad de Asistencia y Capacitación, U. Autónoma, Fundación Coanil, Corporación Centro Cultural Gabriela Mistral (GAM) and Fundación Tierra de Esperanza.
The pronouncement issued now by the current Labor Director, Pablo Zenteno, reverses the previous criterion.
Thus, for this administration, the restriction in question is applicable “exclusively” to public or private companies whose budgets have been financed, in any of the last two calendar years, in more than 50% by the State, directly or through duties or taxes. In other words, such payment must be established in those terms in the corresponding National Budget Law.
In this context, the service is clear: the restriction in question is not applicable to companies or institutions that provide goods to the State through the award of contracts with the Treasury, through public bids or framework contracts and direct deals, regulated by Law 19.886.
The partner and director of the labor group of Albagli Zaliasnik (az), Jorge Arredondo, valued the pronouncement of the DT .
“It provides greater certainty in that sense, by regulating what happens to companies that contract with the State through different types of contracting modalities”, commented the lawyer.
From his perspective, “it seems to be a positional change rather than a new background that justifies the decision. Undoubtedly, it is a relevant change for those companies that contract with the State, but it seems to me to be in the right spirit”, he added.
