An interview with labor lawyer Karina Nohales.
After decades of its dictatorship-era constitution drastically reducing the rights of workers, women, and others, a new constitution is on the way in Chile. The draft paves the way for collective labor rights, public health care, and much more.
The first step toward a new constitution in Chile is now complete. The draft of the new Magna Carta was officially delivered on May 16, paving the way for major changes in Chilean society, particularly in the areas of social rights, gender parity in political participation, and constitutional recognition of native peoples.
In terms of social rights, the new constitution recognizes demands that have been a banner for popular struggles since Augusto Pinochet’s neoliberal counterrevolution in the 1970s. It guarantees access to health, housing, education, decent pensions, nonsexist education, and the right to abortion, all grouped under the concept of a “social and democratic state” that recognizes itself as plurinational, intercultural, and ecological.
Pablo Abufom of Jacobin Latin America spoke with Karina Nohales about all the changes that can be expected with the new constitution. Nohales, who also serves as Alondra Carrillo’s constituent spokesperson, analyzed the relevance of the newly approved norms, especially those related to labor and labor rights, and explained the challenges that this new constitutional period poses for the plurinational working class of Chile.
PABLO ABUFOM: One of the most important milestones of the Constitutional Convention was the approval of a series of social rights, many of which have been banner struggles for popular organizations for decades. That included a set of labor rights that had been pending since the end of the dictatorship. In your opinion, which are most significant?
KARINA NOHALES: First of all, there is an immediate feminist dimension to the new labor rights. Feminism arrived at the convention on a wave of mobilizations and amid important programmatic discussions so that it was poised to shape constitutional debates about the recognition of domestic and care work. Specifically, socialist feminism was influential in establishing that domestic and care work be considered socially necessary labor, indispensable for the complete sustainability of society and, therefore, requiring the backing of a comprehensive care system at the state level.
This new approach deprivatizes care work, shifting the coordinates of what had been a more liberal feminist approach that never goes beyond policies of coresponsibility between the sexes — which are certainly necessary, but remain at the level of the home and the private space. Today we have advanced toward actually socializing this type of labour.
Then there are the norms that fall within the realm of individual wage-earning labor law. In this area, the constitution enshrines principles and parameters stipulated by international law, especially those of the ILO (International Labor Organization). By Chilean standards, they amount to an advance over what existed up to now: ever since Augusto Pinochet’s constitution, labor has been completely untethered from the sphere of rights, to the point that the only guaranteed right in the world of labor is so-called “freedom of labor,” that is, the supposed freedom of the worker to choose where to work and the freedom of companies to freely choose whom to hire.
Finally, one of the most significant advances is that of collective labor rights. The new constitution recognizes the right to freedom of association at three levels: unionization, collective bargaining, and strikes. By recognizing those rights, the new constitution dismantles key strategic legal bulwarks imposed by the dictatorship and the democratic transition.
First, it guarantees the right of public and private sector workers to form unions and the right of these organizations to set their own demands. Second, it establishes exclusive union rights in collective bargaining, for bargaining at any level decided by public and private sector workers, and sets as the only limit to bargaining the renunciation of labour rights. Third, it guarantees public and private sector workers the right to strike whether or not they have a union. It is also established that by law strikes may not be prohibited.
These three elements represent a Copernican revolution with respect to the 1980 Constitution, which mentions the word “strike” only once — to prohibit it for public sector workers. It is also a sea change with respect to the current legislation, which allows collective bargaining only at the company level, so that it cannot be exercised jointly by workers of two or more different companies and which recognizes the exercise of strike action only within the framework of the “legal” collective bargaining process.
In a country where more than 40 percent of the formally salaried labor force works in small- and medium-sized enterprises, and in a country where a brutal process of productive decentralization has taken place, this legal framework has reduced collective negotiation and the strike to near complete obsolescence. Even where it exists, the reality is more like “pluripersonal” than collective negotiations. The latter is reinforced by the existence of so-called “negotiating groups” that can be set up temporarily within companies for the sole purpose of negotiating common working conditions — a very harmful anti-union practice that is legal in Chile.
With union control over collective bargaining, the new constitution will put an end to a practice that allows companies to keep groups of workers, all in the same workplace, subject to differentiated working conditions. Another great piece of news is that public employees will not only no longer be prohibited from striking but will have full collective rights.
The surprising thing is that these advances were advanced by a body that has no direct self-representation from the world of organized labor. I think it’s worth asking how that was possible.
PA: I would be interested in discussing that point more. What other norms were approved that are associated with union struggles or the struggles of non unionized workers?
KN: There are two other norms worth highlighting. On the one hand, workers are guaranteed the right to participate through their union organizations in company decisions. How that participation will be worked out is a matter for legal discussion, and undoubtedly, this will open interesting debates in the near future.
On the other hand, inseparable from the labor issue is the right to social security, which the new constitution would guarantee. The new law would have several noteworthy characteristics. First, it stipulates that the state must set social security policy based on principles such as solidarity, equal distribution, and universality. Second, it requires the creation of a public social security system to cover different contingencies. Third, it establishes that the financing of the system will be through mandatory contributions from workers and employers and from national revenue, and that this money cannot be used for purposes other than the payment of the benefits. Finally, trade union organizations will have the right to participate in the management of the public social security system.
All these characteristics represent an absolute break with the individual capitalization system that exists today, a system administered exclusively by private companies (the Pension Fund Administrators, AFP) and financed by workers’ contributions (the employer does not contribute). The AFP invests this money in shares in the stock market, generating irrecoverable losses. In 2008, as a result of the subprime crisis, nearly 40 percent of Chilean workers’ pension savings were lost. Since the AFP is not intended to pay pensions, it offers a miserable income at the end of one’s working life.
PA: Regarding the effects that these new constitutional norms will have, what are their implications for the recognition of domestic and care work?
KN: Wherever social rights are recognized and guaranteed, there is a legislative aspect where the terms of the constitution assume a full legal basis. One way this can happen, as approved by the constitution, is the possibility of presenting a popular initiative.
One of the first tasks will be to elaborate a popular initiative that will outline what this integral system of care consists of. How does it work? How is it financed? What are its communal aspects? Answering those questions will force the very diverse sectors within the feminist movement to reach a position and put forth a proposal that ignites the political imagination, because this type of system — which does in fact exist in other countries — has never existed in Chile.
I feel optimistic on this point because the feminist movement (to speak in the singular, allowing for all its diversity) was the only sector capable of putting a set of unified popular initiatives before the Constitutional Convention — different from what happened in health, education, labor, or social security, where there were competing popular initiatives. In the case of sexual and reproductive rights and the right to live violence-free and enjoy a nonsexist education, we had unified proposals for the laws we wanted. In that sense, the convention has been a very important precedent for the political task that lies ahead.
Also, the task remains to explain to the public what it means to socialize this type of work, because these are concepts largely alien to the general population. Moreover, they are unknown to many women from marginal and middle sectors, where the whole notion of a double workday — half of which we are told is love and not unpaid work — is still marginal to concepts of coresponsibility between genders. For example, care work is framed by demands such as the requirement that employers cover the costs of nurseries, which actually implies monetarization as a way of sustaining this type of work.
So, on this point, I believe that we are facing a greater and longer-term challenge that involves distant political horizons. Nor do I know whether we can maintain the transversal unity of feminisms on the issue, since historically feminism has taken very different positions on the issue of how to treat care work.
PA: Along the same lines, we are seeing something unprecedented, which is a government that calls itself feminist: cadres of the organized feminist movement assumed important positions in the Gabriel Boric government.
How do you see some of those feminist debates you alluded to earlier developing further down the line, particularly between the feminist movement and its counterparts in the government? Should we expect stronger polarization, or, perhaps, might we see these radical measures moving forward more quickly than they otherwise would?
KN: If the question is whether it will be easier or harder to advance a feminist agenda with feminists in power, I would say both. Easier, because the existence of a comprehensive care system is part of the current government’s program. But at the same time, it is not easy to be at the helm of a government that has to manage a fiscal budget with limited resources. It is not the same as being on the outside, where one just has to demand things from the state. So it will be easier and more difficult at the same time.
PA: One problem you alluded to earlier is the fragmentation of organized labor, which is rooted in the fragmentary nature of production in Chile: a multiplicity of small- and medium-sized commercial enterprises, or ancillary services and sectors, especially in agriculture, forestry, and mining. This is reinforced by legislation that fragments organized labor by appointing negotiating groups, creating multiple unions in the same company, and so on. What implications do you think the new constitution’s rules on collective bargaining will have? What challenges will it pose for the union movement to take charge of this change?
KN: Actually, in Chile there has never been strong trade unionism, despite the myth that before the 1973 coup d’état there was a glorious trade union movement. True, the seventeen years of dictatorship brutally crushed the labor movement, and that meant an irreversible historical setback in many senses, but that does not mean the organized labor movement had the same dimensions that are sometimes attributed to it.
In that same sense, it is so important to not think of these processes as a return to the past, as a certain kind of Left likes to do: a virtuous past that was violently stolen away from us and that only now can be vindicated. The goal should always be to build an alternative for the future that is much more powerful than what came before.
Different currents of feminism have been particularly emphatic in saying, “It’s not about going back to what we had.” As feminists, this is to be expected: it’s enough to just look at where we were during those processes. The trade union world was always weak in Chile because it was always linked to production, and there never existed here any kind of collective negotiation or unionization according to sector. There were some cases, but they were clearly the exception to a structure that persists to this day: an absolutely pyramidal chain that reproduces bureaucratic tendencies.
So, the levels of unionization were never very high in Chile. There was a unique moment when the Peasant Unionization Law was passed in 1967. That was a leap forward, because the peasantry could unionize, and then it reached its climax in 1972 during the Popular Unity government.
My point is that the new constitution enables unprecedented forms and levels of labor negotiation, not a return to the past. The odd thing is that it is happening now, in a rather barren moment for trade unionism and amid the old labor structures of the democratic transition, which was characterized by two currents: the ad-hoc trade union instruments of the parties of the transition, of which the main trade union confederation, the Central Unitaria de Trabajadores y Trabajadoras (CUT), has come to represent a politics of surrender to the governing administrations’ policies of neoliberalism.
On the other hand, there are the strongholds of combative trade unionism that come out of the workers’ tradition of class struggle. These sectors have not proposed (or not succeeded in) consolidating themselves as a “current” in the sense of a particular political or ideological tendency. There have also combative sectors that have waged large strikes and defied restrictions on labor militancy, putting in check important sectors of the business community. I am thinking, for example, of the dockworkers’ union.
PA: What specifically would be the challenge for trade unionism after the approval of the new constitution?
KN: I actually think the dilemmas of the labor movement are a challenge for the working class in general. The rank-and-file movement has never been part of the official trade union structure in Chile, and, at the same time, the working class looks at organized labor as a foreign entity. The challenge, in other words, is to forge the unity of working men and women and seize the political opportunity before them, which is one that nobody can do in their name: to fight employers.
It is not clear if this will be achieved from a position of class independence or not. I’m not referring to any ideology of “red trade unionism” — I just mean class independence, without compromises with big business. That will depend on which sectors seize the initiative, and it seems to me that those who are in a better position to do so are the political sectors with an important insertion in the trade union world. Unfortunately, those groups tend be linked to nonindependent partisan sectors.
PA: One of the surprises of the result of the constituents’ election on Mary 15 and 16, 2021, was that only one union leader, Aurora Delgado, a health worker and spokesperson for the Coordinadora Nacional de Trabajadores y Trabajadores NO+AFP in the city of Valdivia, was admitted to the Constitutional Convention. That happened despite the fact that there were candidates with long careers and leading positions, as was the case of Bárbara Figueroa, who at that time had just stepped down as president of the CUT, and Luis Mesina, who was the leader of the NO+AFP coordinating committee for many years. Why do you think it didn’t make sense for those leaders to take on political tasks at the convention?
KN: This is a crucial question: why is it that in an election in which popular sectors effectively demonstrated their support for the “revolt” of 2019, trade unionism in all its different iterations — be it the official trade unionism of the transition or combative trade unionism — was viewed by voters as something alien and not worthy to represent Chilean society?
This tells us many things: the popular revolt of 2019 illustrated what Chilean society has become over the last thirty years of democratic transition, and I believe that the main current of trade unionism is not exempt from larger trends. The traditional labor leadership — especially in the hands of Christian Democracy, the Socialist Party, and even the Communist Party — looks to most people to be synonymous with the parties of order and therefore opponents of the change to Chilean society that the uprising called for.
Moreover, after thirty years, trade unionism feels like a foreign experience for huge parts of the working class. This has to do with the existing structure of Chilean organized labor, with the levels of work informality, or with legal structures that enable a select minority to organize while excluding the rest, not to mention a certain impotency and lack of fighting spirit from the trade union sector itself.
There are no existing tools today that could bring together informal workers, immigrant workers, unpaid workers, and the unemployed sectors. In short, we do not have a trade union current whose goal is the unity of the working class around the problem of labor. Mind you, this is not a problem in the singular, it is the unity of those problems that has to be comprehensive of different working-class realities.
True, there are some militant trade union sectors, but even those put forward a vision of unions that is overwhelmingly reflective of their base: male, formally salaried, and organized in legal trade unions. We could ask ourselves: what is the percentage of that masculinized, formally salaried, and unionized sector within the larger working class today? It is a minority.
There are those who assert that the stewardship of the working class belongs with these sectors, even if social movements with a much greater power than the unions have emerged. The social movements are putting forward demands that a hundred years ago would have been the main slogans of organized labour.
It should really give us pause that the end of the labor plan of José Piñera (brother of the former president) and of Pinochet was achieved with virtually no trade union presence in the convention. It was achieved by a body in which the working people are self-represented and raised a labor demand on its own without representatives from the trade union world. It is the working class that has managed to realize that demand, and, actually, that is good news.
PA: In closing, it is worth pointing out that, in a catalogue of new rights, the Constitution enshrines a series of social rights for which we have been fighting for decades. The exception is the recognition of unpaid domestic and care work, a demand that is relatively new, at least in the form in which it was approved [as a proposal for a Public Care System]. What do you think of these circumstances? Could the new constitution be thought of as “bringing up to date” a public understanding of the composition of the Chilean working class?
KN: Yes, in part. That is to say, it is impossible for a body made up of 154 people to be fully expressive of that public. But there are two sectors represented in the convention through an overwhelming popular vote: the sectors organized around the feminist struggles, and the sectors that have organized around the socioenvironmental struggle. In particular, the sectors that have supported the feminist demands and mobilizations in these decades have come with a program and extensive political deliberation, to say nothing of their sheer numbers as reflected in street mobilizations. The “Encuentro Plurinacional de Las y Les que Luchan” made this possible, and it gave the movement a distinct advantage that was palpable at the Convention.
But feminism today in Chile has also entered the common sense of large parts of the population — it has a kind of social authority, even in the eyes of those who do not necessarily sympathize with feminism. The fact that feminism has managed to hold such sway over common sense and mass public opinion has been very important for the advancement of unprecedented issues. This is the first constituent process with gender parity in the world, but it has also succeeded in consecrating a gender parity democracy with no ceiling. That is to say all government bodies, whether or not they are popularly elected, must be made up of at least 50 percent women. Not 50 percent and 50 percent — it can be 80 percent or 100 percent women.
Another issue has been the right to abortion, something we could not achieve from any constituted power. Very recently, in September last year, the National Congress rejected the decriminalization of abortion, but now the voluntary interruption of pregnancy has been enshrined as a fundamental right through the convention. This happened thanks to the vote of political figures who would never have approved it in the framework of a parliamentary debate, political sectors that did not even approve decriminalization.
So the strength of feminism at the convention is quite impressive. I agree that in Chile there has never historically been any wave of feminist mobilization that put the demand for the socialization of work at the center of its struggle. But the demand itself is not new. In the Russian Revolution, such a program of socialization of work was tested. It was also central to the so-called “second wave” of feminism. In Chile, fortunately, it was warmly received by organized feminist sectors that made the deliberate decision to adopt the socialization of care labor.
But yes, this shows not only that feminism is capable of taking charge of its historical agenda but also that it has managed to advance a series of demands without serious opposition in the Constitutional Convention, where one would expect protests that these are not “properly feminist” and that they are demands of “the working class in general.”
There are always those sectors that want to put feminism in a particular place. But the feminist challenge has answered with a call for orientation of “transversalization of feminism in the social movement,” which conceives its own activity as a form of political action of the working class. So, for example, the right to housing is enshrined in the new constitution as a historical demand of the movement of homeless people, but at the same time, the right to housing also includes shelters for people who have experience gender violence.
This mainstreaming of feminism means more than just taking on demands that have long existed in popular sectors. It also means that the feminist movement will leave its stamp on them and rethink key aspects of those demands, in terms of impact and scope, where sex and gender are concerned. Because for all these policies — and this will be guaranteed in the language of the new constitution — are going to specifically address women and sex-gender diverse groups, enshrining one of the most advanced feminist processes of the last decades within a deliberately trans-inclusive feminist perspective.