We invite you to read the publication of Diario Financiero in which our partner, Jorge Arredondo, commented on the court ruling against the Labor Directorate for a minimum services qualification.
The Court of Appeals upheld a ruling in which it was stated that the public agency lacks the competence to qualify a minimum services agreement reached between a company and its union.
Along with the entry into force of the labor reform of former President Michelle Bachelet in 2017, a figure that gained prominence were the so-called minimum services.
The concept corresponds to those functions, tasks or processes of certain companies that must be attended during the development of a strike, provided that they are strictly necessary to protect the assets and facilities of the firm and prevent accidents, ensure the provision of public utility services or the attention of basic needs of the population, or to ensure the prevention of environmental or health damages.
Minimum services can be qualified through a direct agreement between the employer and all the union organizations existing in the company -prior proposal of the former-, or through a qualification by the Labor Directorate (DT), to which one of the parties must resort when a point of communion is not reached.
An agreement on this matter reached between the Cargo Mobility SPA Cargo Agency – a firm dedicated to airport logistics – and its union ended up with the company facing the DT in court. This, as the public service did not validate and refused to register the aforementioned minimum services agreement. The dispute escalated to the Court of Appeals of Santiago.
The story
In February 2023, Agencia de Carga Cargo Mobility SPA filed with the First Labor Court of Santiago an administrative resolution claim against the inspection agency.
Why did the DT refuse to register the agreement? In the opinion of the service, it was not possible to validate it, since it had not been signed by the absolute majority of the union’s leaders.
However, the company explained that this had not been possible, since although the union’s statutes contemplated that the board of directors was composed of four leaders, at the time of closing the minimum services agreement only two of them were still in force.
Despite this explanation, the service rejected and did not validate the agreement.
Faced with this refusal, the company resorted to the courts and managed to obtain the support of the First Labor Court of Santiago, which in its ruling stated that in this matter the labor regulations established that “the only intervention of the Labor Directorate in the process is that of being the depositary of the agreement” and that it is not foreseen in the law that this body can make observations on the instrument in question.
“It corresponds to the state organs to be subject without any exception and in all their actions, according to the constitutional norm of article 7° and they cannot attribute to themselves other powers than those contemplated in the fundamental text and the laws that have been dictated in accordance with it”, said the justice of first instance.
In its opinion, the Labor Department did not justify the norms that would allow it to validate the agreement reached between the parties.
After this, the Labor Directorate escalated the issue to the Court of Appeals, which this week delivered its resolution, supporting the sentence of the aforementioned court.
In its ruling, the Court stated that the judge “did not err” in pointing out that in this matter the regulations establish that the Labor Department should only be the “depositary of the agreement”.
For the company’s lawyer and AZ partner, Jorge Arredondo, this is a relevant ruling.
“What has already been made clear by the Court of Appeals with this pronouncement is that there is complete and total negotiating and collective autonomy between the unions and their employer to freely define the contours of the minimum services”, said Arredondo.
The lawyer emphasized that with this ruling it is clear that the DT lacks “the power to question this type of agreement. It is a relevant ruling, because it fixes that the unions are autonomous in this process, they have absolute freedom (…) the power of the DT is only depositary”.
