TC upholds temporary disqualification of employers convicted of violating workers' fundamental rights

On 23 October 2025, the Constitutional Court rejected a request of inapplicability on grounds of unconstitutionality against a rule that prevents employers convicted of violating workers' fundamental rights from contracting with the State (art. 4°, paragraph 1, second part, of Law No. 19.886; and art. 495, final paragraph, of the Labour Code).

The contested legal precepts establish the following:

• Art. 4°, Law No. 19.886: "[...] Those who, within the two years prior to the submission of the bid, the formulation of the proposal or the signing of the agreement, depending on whether the tender is public, private or direct contracting, have been convicted of anti-union practices or infringement of the fundamental rights of the worker, or of bankruptcy offences established in the Criminal Code, shall be excluded".
• Art 495, Labour Code: "The sentence shall contain, in its operative part: [...] A copy of this sentence shall be sent to the Labour Directorate for registration".

The applicant is a Corporation that manages a CESFAM, and which was convicted by the Labour Court of Concepción for violation of fundamental rights on the occasion of the dismissal of a worker, in particular, for having affected his freedom of expression and psychological integrity. She lodged an appeal for annulment against this judgement, which is currently before the Court of Appeals of Concepción.

The plaintiff argued that the application of the contested precepts would violate the principles of equality before the law and service of the State, arguing that the inability to contract with state bodies for two years is disproportionate and, additionally, could imply the closure of the CESFAM that it manages, which would affect not only the Corporation, but also its almost 2,000 workers and more than 16,000 users.

Notwithstanding the above, the Court concluded that the measure provided for in Law No. 19.886 does not violate equality before the law or due process, as it is a reasonable and temporary consequence, not definitive, and considering that the disqualification established in the law is consistent with the objectives of protecting the rights of workers and ensuring fair competition in public procurement. Furthermore, the disqualification does not impede the development of the economic activity of the employer, who could continue to contract with private entities.

With regard to the principle of serviceability, it was considered that the applicant did not provide concrete background information to determine how the disqualification would affect the health care provided by the CESFAM, stressing that the current contract with the Health Service would not be affected by an eventual conviction and that the alleged restriction was merely hypothetical in nature.

The decision was agreed with the dissenting vote of three ministers, who were in favour of accepting the injunction on the grounds that the contested precepts violate equality before the law and due process by establishing a flat sanction on the sole merit of the law. They also emphasised that the review of constitutionality must be carried out considering the particularities of the specific case and not in the abstract.