The case that we discuss on this occasion is related to a minimum services pact agreed between a company and its union organizations.

Indeed, based on the collective autonomy of the parties, they autonomously decided to enter into a minimum services agreement whose purpose is to maintain certain types of operations in the event of a possible stoppage due to a strike.

In the specific situation to which we allude, one of the unions contemplated in its statutes that its board of directors was made up of four leaders, however, at the time of reaching the minimum services agreement, only two of these remained in force. For this reason, the respective instrument was celebrated, with only the leaders who had the status of active workers on that date signing it.

Once the agreement was reached, the respective agreement was deposited with the Labor Inspection, which issued a resolution rejecting said management and not validating the document signed between the parties, because, in the opinion of the labor administrative authority, it did not satisfy its criteria and standards.

It is against said resolution of the Labor Inspection that the company filed a lawsuit in court, questioning the actions of said department for assuming powers that it does not have.

Therefore, the underlying discussion of this case is, What is the degree of interference that the Labor Directorate can have with respect to a minimum services agreement that has been achieved autonomously and freely between the employer and its union organizations?

The ruling expresses clearly and emphatically (case Rit I-93-2023 of the 1st Labor Court of Santiago) that “Article 360 ​​of the Labor Code, regarding the agreement that union organizations can reach in relation to the matter, has contemplated that the only intervention of the Labor Directorate in the process is to be the depositary of the agreement. Unlike what is provided for in article 223 of the Labor Code, it has not provided powers with respect to this body to make observations to the instrument in the sub-lite case.”

It continues, “It is up to the state bodies to be subject, without exception and in all their actions, to the constitutional norm of article 7 and no other powers can be attributed than those contemplated in the fundamental text and the laws that have been issued in accordance to her. The defendant does not justify sufficiently under the normative assumption that active conduct is justified regarding the questioning of the legitimacy of the instrument that has been delivered to her for collection.”

This is a pronouncement of utmost importance since it clearly delimits the degree of intervention that the Labor Directorate can have regarding a minimum services agreement concluded between the employer and its unions, and restricts any possibility of objecting to it, repairing it or refusing to have it. by deposited, since its role is not predominant when there is a direct agreement between the parties.

For more information you can contact :

Francisca Franzani  | Compliance Group Director |  ffranzani@az.cl