Analysis of the criteria for qualification of a service essentiality: the prohibition of the right to strike in the regulated contractual system of the chilean labor code

Abstract

Article 362 of the Chilean Labour Code provides for hypotheses that make it possible to prohibit the exercise of the right to a regulated contractual strike in the event that it collides with certain fundamental rights, with the aim of protecting the users of essential services. However, its application is not a peaceful matter. For this reason, the purpose of this paper is to analyse the scope of this prohibition, limiting its scope in accordance with a respectful reading of the strike as a fundamental right. To this end, it analyses labour legislation, judicial and administrative caselaw, national and comparative doctrine, and the pronouncements of the International Labour Organisation. It also takes into consideration that in Chile there is another limitation measure that also complies with the objective of protecting the fundamental rights of third parties and that invades to a lesser extent the exercise of the right to strike, which makes the prohibition disproportionate.