Our partner Jorge Arredondo talked to Diario Financiero about a ruling that unnecessarily complicates the labor scenario by treating the company as separate compartments and not as a single organization.
The Court of Appeals and the Supreme Court prohibited the stoppage of functions only to workers working at the Pilmaiquén Hydroelectric Power Plant and at the Pilmaiquén 66-13.8 kv transformer installations. Lawyers accuse that the norm is not being respected and the company regretted the decision.
A recurring issue that usually confronts union organizations, companies and the government in court is the controversial list of strategic companies, a list of companies in which it is prohibited to exercise the right to strike.
The prohibition, contemplated in Article 362 of the Labor Code, establishes that workers rendering services in corporations or companies, whatever their nature, purpose or function, “that provide services of public utility or whose paralysis would cause serious damage to health, to the economy of the country, to the supply of the population or to national security” may not declare a work stoppage.
A recent ruling related to this issue has become an obligatory comment among labor lawyers. The reason? The court prohibited the stoppage of functions in a company, but only in one area of the company. An interpretation that, in the opinion of experts, would not respect the law.
The case
In October 2023, the Enel Green Power Chile Workers Union filed an appeal for protection before the Court of Appeals against the classification of strategic company made by the Ministries of Economy, Defense and Labor, requesting to limit the restriction “only to those workers who perform their functions in the transmission line associated with the Pilmaiquén Hydroelectric Power Plant, and regarding the installations of the Pilmaiquén 66-13.8 kv transformers”.
This implies leaving out of the prohibition all other workers.
After more than a year of judicial dispute, the Court of Appeals handed down its pronouncement, and supported the request of the union organization.
After reviewing a series of technical and legal antecedents, the Court of Appeals pointed out that “clearly we are in the presence of a company that has different activities related to the electricity sector, being that only one of them involves the provision of public utility services according to the electricity regulations (transmission) but not the other (generation)”.
For the Court, maintaining the total prohibition of the exercise of the right to strike with respect to all those who work in the company would imply “disproportionately affecting the exercise of the right with respect to those who work in a non-essential service”.
Along these lines, the judgment adds that “nothing prevents” the limitation from being applied partially within a company with different lines of business, being able to segregate the workers of the same company according to the nature of the service in which they perform their work.
This is so, the Court explained, because like any limitation of a fundamental right, “it must be applied restrictively, in accordance with the principle of proportionality and, in particular, aimed at allowing the exercise of the right to strike rather than repressing it.”
The case escalated to the Supreme Court, and the highest judicial instance backed the Court of Appeals and the union.
In its resolution, the highest court reiterated that “nothing prevents the limitation from being applied partially within a company with different lines of business, being able to segregate workers according to the nature of the service in which they perform their work”.
Thus, the Supreme Court supported the thesis of the Court of Appeals by insisting that “the prohibition of the exercise of the right to strike must be interpreted restrictively so that it only affects those who perform work related to the function of public utility service or that its paralysis causes serious damage to health, to the economy of the country, to the supply of the population or to national security”.
The debate
Among experts, the ruling generated harsh criticism.
For the partner at GNP Canales Abogados Laborales, Carlos Gutiérrez, the Supreme Court has given an “interpretative turnaround” by allowing the prohibition of the right to strike to apply only to certain functions or areas within an essential company, instead of to the whole company as established in Article 362 of the Labor Code.
An interpretation which, in his opinion, in practice could imply “seeing companies and unions divided: workers on strike coexisting with colleagues who cannot strike. A complex scenario that strains union unity and challenges internal management. Time will tell if this path becomes a doctrine or a major problem”.
The same reading was given by Cristóbal Raby, partner of Estudio Prieto Abogados, who added that the ruling imposes on the company and the union, “a very relevant practical difficulty at the time of collective bargaining, having to segregate by functions and not by company, which in practice will result in the possible coexistence of a collective instrument for some and an arbitration award for others, with different benefits”.
For him, the problem is evident “and it will be interesting to see how it is resolved, especially considering the precedent that this ruling may imply for all those companies included in the list with strike ban, which have related activities closely linked to the essential service that motivates the ban, such as the ambulance driver of a dialysis company”.
Albagli Zaliasnik partner Jorge Arredondo also added his voice to the criticism. “To establish divisibility is to make the matter more complex, it is effectively establishing that the company acts as compartments and not as a single organization. It does not seem reasonable to me to establish a criterion in this sense.”
Enel Green Power’s view
The company was consulted on the matter, and indicated that although the company respects the Supreme Court’s ruling, it “deeply regrets that the qualification is only partial, which ignores the interdependent nature of the electricity system”.
In their response, they added that as a firm they hope that this type of decision “does not set a precedent that weakens the stability of an essential sector for the country. We trust that the authorities will know how to promote criteria that safeguard the general interest and ensure the uninterrupted operation of the companies that enable the functioning of the national energy system, especially considering the events that have occurred in recent months.”
Source: Diario Financiero, July 03. [See here]
La visión de Enel Green Power
La empresa fue consultada al respecto, y señalaron que si bien la compañía respeta el fallo de la Corte Suprema, “lamenta profundamente que la calificación sea únicamente parcial, lo que desconoce el carácter interdependiente del sistema eléctrico”.
En su respuesta, agregaron que como firma esperan que este tipo de decisiones “no sienten un precedente que debilite la estabilidad de un sector esencial para el país. Confiamos en que las autoridades sabrán promover criterios que resguarden el interés general y aseguren la operación ininterrumpida de las empresas que permiten el funcionamiento del sistema energético nacional, especialmente considerando los eventos que han ocurrido en los últimos meses”.
