Fundamental Labor Rights

Wolfenson Lawyers understands the protection of your fundamental labor rights.

As a general rule, fundamental rights safeguard the rights of natural persons, without prejudice to this, jurisprudence has recognized their application of some of those guarantees to legal persons. Wolfenson provides legal advice and representation before the Superior Courts of Justice for the effective defense and protection of your labor rights.

Through various actions that our Magna Carta admits, we deliver excellence with attorneys focused on our clients and the rights of the worker and their employer.

Here is a legal guide to provide you with guidance on fundamental worker rights:

What are the fundamental rights of workers?

The fundamental rights of workers are those rights and freedoms that as a person he owns by the mere fact of being such, and that are recognized and guaranteed by the Constitution and the respective laws ,

Fundamental rights are those rights and freedoms that every person possesses by the mere fact of being such, and which are recognized and guaranteed by the legal system . Every worker is a person, therefore, he is the holder of fundamental rights within the company . In this capacity, the worker may appeal to the Labor Courts using the Labor Guardianship judgment when he considers one or more of the following rights set forth in Chilean labor law to be affected.

· The right to life and physical integrity of the worker , provided that their violation is a direct consequence of acts that occurred in the employment relationship.
· Respect and protection of the privacy and honor of the worker and his family.
· The right to freedom of conscience , to the manifestation of all beliefs and to the free exercise of all cults.
· Freedom of expression , opinion and information without prior censorship , in any form and by any means. · Freedom of work and the right to free choice. In addition, the guarantee that no type of work can be prohibited, except for the exceptions that the Constitution itself provides.
· The right not to be subject to the discriminatory acts indicated in article 2 of the Labor Code . · Freedom of association and the right to bargain collectively without undue obstacles.
· The indemnity guarantee, which consists of not being subject to retaliation by the employer, due to or as a consequence of the supervisory work of the Labor Directorate or for the exercise of legal actions.
(SEE: Political Constitution of the Republic of Chile, articles 5 and 19; Labor Code, articles 5 and 485)

When are the rights and guarantees of workers understood to be violated?

They are understood to be violated or injured when the employer or his representative performs acts or adopts measures that limit the full exercise of the fundamental rights of the worker without sufficient justification , in an arbitrary or disproportionate manner , or without respect to its essential content.
(SEE: Labor Code, articles 2 and 62 bis)

Who can denounce or initiate a Labor Guardianship trial?

The directly affected worker or the Union , may denounce before the Inspection or before the Courts of Justice the violation of a fundamental right or an anti-union or unfair practice in collective bargaining . In addition, the Labor Inspectorate must file a complaint with the competent court when it becomes aware of a violation of fundamental rights . (SEE: Labor Code, articles 485, 486 and 489; Political Constitution of the Republic of Chile, article 19; Ordinary 160, of 01.16.2017)

The directly affected worker or the Union, invoking a right or a legitimate interest , may denounce before the Inspection or before the Courts of Justice the violation of a fundamental right or an anti-union or unfair practice in collective bargaining.
The Labor Inspectorate , acting within the scope of its powers and without prejudice to its supervisory powers, when it becomes aware of a violation of fundamental rights, must report the fact to the competent Court , accompanying the corresponding inspection report and being able to take part in the judgment. Whether the complaint to the courts is filed directly by the worker or the union, or through the Labor Inspection, its acceptance will mean the opening of a trial by Labor Guardianship.
(SEE: Political Constitution of the Republic article 19; Labor Code, articles 485, 486 and 489; ORD. 160, of 16.01.2017).

Where to report

The worker and union organizations can file their complaints for violation of fundamental rights in the Labor Inspectorate (administrative complaint) or directly in Courts of Justice (judicial complaint).

If it is done in the Labor Inspectorate , the interested party must resort with his identity card plus the background that is useful to substantiate the facts that he accuses. The Inspectorate will order the necessary audits and if this investigation reveals the offending facts or, at least, the existence of sufficient indications of violation of fundamental rights , the Inspectorate will summon those involved to mediation in order to seek measures of reparation and thus reestablishing the violated right . In case of not reaching an agreement between the parties in the mediation, the Inspection will file the corresponding complaint before the competent court, accompanying the corresponding audit report, so that the jurisdictional body is the one who knows and resolves the conflict.

If the complaint is placed directly in the Courts of Justice (Labor Courts), it must be done in writing, with the sponsorship of a lawyer , within a period of 60 business days from the violation of the alleged right or guarantee . If the worker previously opted to put the complaint in the Labor Inspection , the term will be suspended while the administrative procedure lasts. In any case, the term to report in court cannot be extended beyond 90 business days from the date of the violation.

What can a worker do when the employer or a coworker engages in bullying behaviors?

Workplace harassment is any conduct that constitutes repeated aggression or harassment , carried out by the employer or by one or more workers, against another or other workers, by any means, and which results in the victim (s) being impaired, mistreated or humiliation , or that threatens or damages your employment situation or your employment opportunities . However, the person victim of workplace harassment must send their claim in writing to the address of the company, establishment or service where they work or to the respective Labor Inspectorate.

Workplace harassment, harassment or labor persecution has been expressly regulated by the legislator in our country. In effect, the second paragraph of art. 2 of the Labor Code , as amended by Law No. 20,607 (published in the Official Gazette dated 08/08/12), workplace harassment is any conduct that constitutes repeated aggression or harassment, carried out by the employer or by one or more workers, in against another or other workers, by any means, and that results in the affected person (s) being impaired, mistreated or humiliated, or that threatens or damages their employment situation or their employment opportunities. The legal norm also indicates that workplace harassment is contrary to the dignity of the person.
For its part, the Labor Directorate has come to establish through Ord. 3519/034 of 09.08.2012 that workplace harassment is "... any act that involves physical aggression by the employer or one or more workers, towards another or other dependents or that is contrary to the law that assists the latter , as well as insistent annoyances or ridicule against them, in addition to incitement to do something, provided that all such conduct is practiced repeatedly, whatever the means by which those affected are subjected to such aggressions or harassment and always that this may diminish or discredit their honor or fame , or attempt against their dignity, cause mistreatment of word or deed, or translate into a threat or damage to the employment situation or employment opportunities of said victims. "
However, the person victim of workplace harassment must send their claim in writing to the address of the company , establishment or service where they work or to the respective Labor Inspectorate.

(See: Labor Code, article 2, second paragraph; Labor Directorate, Opinion 3519/034 of 08/09/2012)

Wolfenson Abogados provides excellent legal advice on fundamental workers' rights in Chile.

Links of interest on the Protection of Labor Rights :

1.- Labor Code

2.- Chilean Labor Directorate

Wolfenson Lawyers. Chile Law Firm.

If you need more information and legal advice regarding the effective protection of your labor rights, we invite you to contact our lawyers in Santiago. We are located at Avenida Apoquindo 2930 in the commune of Las Condes, Santiago de Chile.

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