Rethinking Legal Complaints

Labour scholars have traditionally understood labour complaints as a resource that can be used by individual workers to defend their rights. This interpretation continues to dominate in Latin America. Scholars have interpreted the increasing number of labour complaints in the region as a rise in individual complaints made by workers, without considering complaints filed by the unions themselves.Footnote ¹³ Some studies have recognised the role that these organisations play as support structures that allow workers to identify violations of their rights and provide them with motivation for and advice regarding the process before the Labour Office and the courts.Footnote ¹⁴ However, little has been said about the significance unions have in delivering this motivation and advice. Most of the time, labour complaints tend to appear in this literature as a substitute for union activity.Footnote ¹⁵

As Adalberto Cardoso puts it:

Recent work in the field of social movements studies challenges the defensive character that Latin American labour literature attributes to legal complaints. Since 1990, an increasing number of case studies has documented how social movements use judicial campaigns strategically to promote changes in public policy and social practices. For example, scholars have shown that decisions made by the United States’ Supreme Court had critical effects on the struggle towards equal employment opportunities led by the civil rights and women's movements. By changing the interpretation of the law, these decisions expanded existing rights, encouraging changes in social behaviour and dominant ideologies.Footnote ¹⁷

These studies have also shown that legal mobilisation has not gained importance exclusively in countries with a common-law system like the United States, where court rulings have the immediate status of law. In countries with a civil (continental) judicial system, social movements have used constitutional review procedures to block unpopular laws or settle political controversies. Scholars have observed that, since 2000, and in response to pressure from social movements, Latin American constitutional courts have started to play a more significant role in the defence of human rights and the expansion of native communities’ entitlements.Footnote ¹⁸

Scholars agree in that the effects of legal mobilisation on social movements’ campaigns can also be indirect. Judicial campaigns can help social movements to raise the visibility of their claim, engage new allies, amass new supporters and leave a legacy.Footnote ¹⁹ This argument implies that judicial campaigns may favour social movements even when the courts’ rulings are not as favourable as these organisations might expect, or when they take place at the lower levels of the judicial system without scaling to high courts. This argument supports the idea that complaints filed with administrative agencies such as the Labour Office may have a similar empowerment effect on the social movements’ campaigns.

The interpretation of legal complaints as an offensive approach that can be used by social movements has not been free of controversy within this field of study. The enthusiasm that it initially generated was followed by a moderate stance which recognises that legal mobilisation can be a tactic of resistance like others, but notes the dangers that this strategy may bring with it. Exclusively using legal campaigns without considering other forms of mobilisation that involve a more active commitment of the grassroots may affect the radicalism of the social movement in the long run and thus its ability to bring about more substantial social change.Footnote ²⁰ Legal mobilisation can be used to transform society, but the depth and duration of these changes ‘depends on the complex, often changing dynamics of the context in which struggles occur’.Footnote ²¹

In any case, studies on social movements’ legal mobilisation challenge the notion of legal mobilisation implicit in Latin American labour literature. Even though this tactic plays by the rules, it is not entirely ‘part of the system’ or harmless to the inherited social order. As Kevin O'Brien notes, legal mobilisation is ‘a form of popular contention that (1) operates near the boundary of an authorised channel; (2) employs the rhetoric and commitments of the powerful to curb political or economic power; and (3) hinges on locating and exploiting divisions among the powerful’.Footnote ²² Most experts in labour recognise organised workers as ‘protesting’ when they resort to tactics that directly imply some degree of disruption of the working process – such as strikes, demonstrations and boycotts. Although some of these tactics are legally authorised in Western democracies, they tend to be considered naturally ‘anti-systemic’. But the struggle against neoliberal logic may also take place unremarkably, in the background, using socially accepted practices that provoke disruption in less obvious ways. This is the case with legal mobilisation.

Certainly, unions differ from social movements in many ways. Firstly, unions tend to be institutionally recognised and enjoy legal guarantees which most social movements must fight for. This may explain a possible difference in the ways unions and social movements use legal mobilisation. However, it is important to keep in mind that unions are not only defined by their institutional position, as they are also militant organisations that, from time to time, fight for broader social changes. In other words, unions have a dual nature: they are simultaneously recognised as interest groups and as organised social movements.Footnote ²³ This argument supports the idea that the understanding of unions can be enriched by the study of social movements, and that differences found in the use of legal mobilisation between the two actors should be empirically assessed rather than assumed.

Explaining Legal Mobilisation by Unions

Conditions that motivate unions to file complaints against companies with the Labour Office and/or the courts are far from obvious. Unlike individual workers, unions can use various tactics to force companies to comply with the law. These tactics range from a strike warning to workplace occupations. This is why legal mobilisation cannot be explained as unions’ automatic reactions to possible increases in legal infractions. The limited international literature available on unions’ legal mobilisation offers some alternative hypotheses that can be used to understand the importance of this phenomenon in Chile.

An initial hypothesis points to the importance of existing institutional resources. Filing complaints against companies with the Labour Office and/or the courts would become an option for unions if these procedures were readily available and effective for these organisations. With such resources, legal mobilisation would gain significance in countries or during times in which the entities responsible for labour law enforcement had sufficient resources to provide a speedy response to workers’ complaintsFootnote ²⁴ or if they had a tradition of passing judgements against companies.Footnote ²⁵

A second hypothesis focuses on the difficulties that unions face when they resort to striking. The right to strike has suffered setbacks over the past few decades, even in countries with a long tradition of social dialogue, and this is thought to force unions to seek out new mechanisms for applying pressure against companies.Footnote ²⁶ Filing a complaint with the Labour Office and/or the courts against a company for violating rights could substitute for or strengthen strikes in the context in which the latter have become inaccessible or excessively risky.

The third and final hypothesis links the increasing importance of legal mobilisation to unions’ organisational weakness. Union officials can force the Labour Office to inspect the company or engage in litigation against the employer without needing workers to actively participate in these processes. In this sense, legal mobilisation requires less commitment or mobilisation of union grassroots to be successful than do other traditional forms of protest such as striking, demonstrations, boycotts or workplace occupations. For this reason, the literature has connected the increase in legal mobilisation to the decline in union density (membership rate) and class consciousness among workers.Footnote ²⁷

The literature tends to use similar hypotheses to explain the differences that exist in the use of legal mobilisation within a single context. Specifically, it suggests that the difficulty of using a strike and organisational weaknesses are key elements that unions consider when choosing their tactics. Aware of their limitations, unions with fewer opportunities to engage in effective strikes or actively mobilise workers would be more inclined to use legal mobilisation than organisations without these disadvantages.Footnote ²⁸ Filing a complaint with the Labour Office and/or the courts would be an intermediate strategy for unions falling somewhere between not responding to employers’ mistreatment and striking.Footnote ²⁹

In this article, I will discuss the applicability of these hypotheses to the Chilean case, in order to explain, on the one hand, the offensive nature of and the place that legal mobilisation occupies in the country and, on the other, the differences between unions in this respect.

The Meanings that Chilean Unions Give to Legal Mobilisation

As the interviews conducted suggest, Chilean unions file charges against companies primarily before the Labour Office and secondarily before the labour courts. When these organisations encourage workers to file charges by themselves, they recommend the same path. Unions’ campaigns at higher levels of the judicial system, such as the Supreme Court, as well as constitutional or international courts, are infrequent. Regardless, these forms of legal mobilisation do not always have a defensive purpose. In contrast to what Latin American literature on labour suggests, unions resort to this tactic not only to restore a right that has been violated by the company; they also do so to promote changes in labour relations at the political and local levels.

First, union officials conceive legal mobilisation as a means to pressure authorities to expand existing labour rights. They use the Labour Office and court rulings to translate their claims into a language of rights, and to gain symbolic and social support for their political cause. As one interviewee put it, ‘The pronouncements are points of reference that can be used to give [unions’] arguments more weight.’Footnote ³⁴ In the campaign to obtain new rights, this tactic acquires just as much value as strikes or protests. For instance, a federation leader in the transport sector described how his organisation convinced the government to pass a law in 2008 which established the maximum number of hours that drivers can work, in the following terms: ‘And we gained the law almost without protesting; simply by taking the employers to the courts.’Footnote ³⁵

With a similar purpose, the CUT has reinforced its pressure on the courts since 2003 as part of a shift toward a more confrontational strategy with the government. For instance, the union filed a case with the Inter-American Court of Human Rights in 2005 in which it accused the state of prohibiting union officials from holding public office. In the same vein, the CUT took the private Administradoras de Fondos de Pensiones (Pension Fund Administrators, AFPs) to the Supreme Court in 2008 with the purpose of forcing changes on the Chilean pensions system. More recently, the CUT announced a centralised legal campaign against the state because of the list of companies that were defined as ‘strategic’ by the government in 2017 and, thus, would be protected against workers’ strikes over the next two years.Footnote ³⁶ Bringing the state or employers to court, and helping other unions to do so, is part of the strategy that the CUT deploys to support its political lobbying and mobilisation.

The degree to which legal mobilisation has been effective on the political level is a complex question that deserves to be considered from various angles. On the one hand, there is a broad consensus among scholars that labour law has not really undergone substantial changes since the Labour Plan mentioned earlier. This clearly shows that unions’ legal mobilisation has not brought about a ‘rights revolution’.Footnote ³⁷ Moreover, legal mobilisation has sometimes resulted in rulings unfavourable to unions, as in the recent pronouncement of the Labour Office in favour of recognising ‘negotiation groups’: groups of workers created to engage in collective bargaining with the company without the mediation of a union.Footnote ³⁸ However, it is also true that legal mobilisation has been fundamental to campaigns that have achieved small victories for workers over the past few decades. As the lawyers, judges and union officials interviewed stated, most of the advances in labour legislation since 1990 have been preceded and shaped by the gains made by workers in the Labour Office or the courts. For instance, the law that explicitly recognised Chilean workers’ ‘fundamental rights’ in the workplace in 2006,Footnote ³⁹ substantially expanding opportunities for workers to defend their constitutional rights, drew on a legal precedent set by the Labour Office. Indeed, this law facilitated the denunciation of violations of workers’ constitutional rights by creating a specific legal procedure (the ‘Procedimiento de Tutela Laboral’ or ‘Labour Protection Procedure’) whereby workers could bring charges before the Labour Office and/or the labour courts rather than before higher courts of law. Yet as far back as 1993, the Labour Office had produced legislation on the limits that fundamental rights set on employer control of workplace processes.Footnote ⁴⁰

Another illustrative case of successful legal mobilisation is the passing of Law No. 20,760 in 2014 limiting the ‘multirut’,Footnote ⁴¹ a practice that allowed companies to avoid labour and pension laws by splitting themselves into more than one entity. Among other things, this law explicitly recognised the right of unions to bargain with the management of disparate enterprises with the same owner or parent company. As Chilean law recognises collective bargaining only within a company, this type of negotiation had not been explicitly guaranteed. However, unions obtained recognition of this right in the Labour Office and the courts years before the law was finally passed.Footnote ⁴²

More recently, the Supreme Court played a central role in unions’ struggle to lift the restrictions that the 1979 Labour Plan set on the subject of striking. The bill that the administration of Michelle Bachelet planned to submit to Congress for reforming the Labour Code in 2015 did not clearly prohibit the right of employers to replace workers during strikes with internal staff.Footnote ⁴³ The President's advisors justified the omission by explaining that this could result in stiffer resistance to the reform by the right wing, as had happened in the past. But the CUT and its political allies drew on Supreme Court rulings to pressure the government and Congress to include this point in the new law. These rulings strengthened the idea that the right to strike is ‘fundamental’.Footnote ⁴⁴ In the end, the bill was modified in favour of the unions’ claim.

For some, these achievements may be perceived as insignificant. However, this position does not do justice to the unions since it ignores the fact that the corporate world has systematically opposed any policy that limits employers’ liberties in handling their business, such as the expansion of labour rights. In other words, the situation of workers in Chile would be even more precarious if it were not for these achievements.

Secondly, interviews show that Chilean unions also use legal mobilisation as a tactic of resistance at a more local level to modify power relations within the workplace. On the one hand, this effect is achieved by forcing employers to follow the legislation and showing them that they are not above the law. In the context of Chile, where the violation of labour laws is a common economic strategy for many companies, as interview participants stated, the fact that an effort is made to require them to actually follow the law is not a defensive action. On the contrary, it constitutes a symbolic and material challenge to the status quo. In the words of one of the union officials interviewed: ‘Today, we are completely subjected to mercantilism and to the market. The only way to fight against this is to try to engage the worker who is being manipulated by the firm and give these guys [the business class] what they deserve by continuously filing lawsuits.’Footnote ⁴⁵

On the other hand, legal action can bring about changes in local relationships because it offers unions a means to pressure employers and make them more susceptible to accepting demands. Judges, Labour Office officials and union leaders who participated in the interviews stated that unions control the timing of the allegations, strategically reserving some accusations for moments when they need to apply more pressure on employers, such as before or during the collective bargaining period.

Assessing the extent to which legal mobilisation has helped unions to change the balance of power in the workplace also requires nuance. There is abundant evidence of the difficulties that unions face concerning efforts to modify labour conditions.Footnote ⁴⁶ Furthermore, the interviews conducted during the study help identify some aspects that weaken the impact of legal mobilisation at this level. For example, the union leaders criticise the low level of the fines imposed by the Labour Office on companies that break the rules, which does not always encourage them to change their practices. Even so, the unions believe that this type of legal mobilisation has had positive effects for workers, and employers seem to share this impression. In fact, the latter have systematically opposed policies that increase the powers of the Labour Office. As a lawyer representing one of the companies stated, ‘There is a bias in favour of the worker. We expect neutral treatment, but that is not guaranteed.’Footnote ⁴⁷ Legal mobilisation has not been revolutionary, but nor has it been without harm to labour relations in the workplace. Regardless of the results of the complaints, legal mobilisation questions employers’ freedom to organise the labour process, disturbing the way in which neoliberalism has traditionally operated in Chile.

The Historical Conditions for Legal Mobilisation in Chile

Why does legal mobilisation adopt an offensive approach, and why does it play a relevant role in Chilean unions’ repertoire? The explanations that the international literature offers seem useful for this case. Legal mobilisation has gained importance in this country in a context of expansion of institutional guarantees for this type of procedure, the placing of limits on the right to strike, and the organisational weakening of the unions.

The Expansion of Institutional Opportunities: The Chilean labour law enforcement system has substantially improved since the return to democracy. Sketching the history of the Labour Office and the labour courts helps to illustrate this trajectory.

The Labour Office can be traced back to 1907, when the government created an agency to generate statistics on different aspects of the labour market for the use of employers and the state. As part of the first Código del Trabajo (Code of Labour Laws), the functions of the Labour Office were expanded in 1931 and the agency was charged with supervising the implementation of labour law and other social legislation. In the beginning, the emphasis was on strict control of unions. The idea that labour law was a tool meant to protect the weakest party in labour relations took time to permeate the Labour Office's work. Moreover, the activity of the Labour Office was limited because it was given very few resources.Footnote ⁴⁸

With the victory of the left-wing Unidad Popular (Popular Unity, UP) government in 1970, the Labour Office gained confidence. Its formal authority did not significantly expand, but its informal power to defend workers substantially increased along with the number of workers who reported companies to the institution.Footnote ⁴⁹ But the military coup of 1973 halted this trend. The military regime sought to re-establish employers’ control over the work process by limiting the intervention of the Labour Office; its officials were purged and its budget reduced. The members of staff who remained were overworked and underpaid, which made them vulnerable to pressure from companies.Footnote ⁵⁰

After the restoration of democracy in 1990, the governments of the Concertación de Partidos por la Democracia (Coalition of Parties for Democracy) made significant efforts to restore the power of the Labour Office. Almost every new labour statute after 1990 came with a mandatory clause that expanded its functions.Footnote ⁵¹ Along with inspecting companies, advising social agents and interpreting the law, the Labour Office was tasked with mediating and arbitrating labour disputes and supervising subcontracting activities, among other new tasks. Its funds and staff were also substantially increased. For the officials interviewed, these resources continue to be insufficient in light of the demand placed on and the new responsibilities assigned to the Labour Office. Even so, the policies implemented over the past few decades have allowed the Chilean Labour Office to become one of the strongest in the region,Footnote ⁵² compared with its counterparts in developed nations.Footnote ⁵³ Furthermore, the number of charges filed against companies with the Labour Office almost tripled from 31,840 to 89,124 between 1990 and 2014.Footnote ⁵⁴

The labour courts underwent a similar process following the return of democracy, though this occurred a bit later than for the Labour Office. The country has had specialised courts for dealing with labour disputes since 1924. By creating special procedures, the legislature recognised the unique nature of labour relationships in which parties are in positions of inequality and endorsed the intention of making up for the economic vulnerability of workers through their legal superiority. However, until the 2000s, the labour courts rarely served this purpose for many reasons. First, the Supreme Court assumed control of the labour courts. Its prerogative to review the rulings of the labour judges through a Recurso de queja (complaints procedure) was legalised in 1953.Footnote ⁵⁵ As the interventions of the Supreme Court were not guided by the same criteria as those that inspired the special labour court, this assumption of control actually led labour courts to become more similar to ordinary civil courts.Footnote ⁵⁶ Second, labour courts maintained a relatively unfriendly attitude towards workers’ claims even during the UP government, when the conditions for taking on a more active role in labour disputes were more favourable than they had been previously.Footnote ⁵⁷

The system was dismantled after the coup. The military government eliminated the labour courts in 1981 only to restore them five years later, though their numbers were significantly diminished.Footnote ⁵⁸ When democracy was restored, the labour courts worked under such difficult conditions that workers rarely enjoyed real access to this medium. In 2005, the state took the first step towards addressing this, approving reforms designed to extensively modify the system.Footnote ⁵⁹ These substantially simplified the procedures and increased the number of courts and judges, along with other practical measures. The impact of these laws on the length of proceedings was remarkable: the average duration dropped from four to five years to only a few months.Footnote ⁶⁰ There was also a major shift in the labour courts’ culture that favoured workers. As the lawyers and judges interviewed noted, the quality of rulings improved and tended to benefit workers, partly due to the fact that judges were better prepared to manage the unique characteristics of labour law.Footnote ⁶¹ The change in the composition of the Supreme Court chamber that handles labour disputes in 2014Footnote ⁶² reinforced this tendency because it changed the direction of the rulings at this level as well.Footnote ⁶³

Unions have not remained indifferent to improvements in the courts. As one union official explained: ‘Before, we encouraged workers to sue the firm [at court] only when they were fired in a serious breach of contract […] But when the law changed, we began to tell all workers to sue.’Footnote ⁶⁴ It is thus not surprising that the number of labour cases filed at labour courts increased from 221,720 in 2010 to 367,357 in 2016.Footnote ⁶⁵

Given the lack of historical data, it is impossible to measure the degree to which the changes in the Labour Office and the labour courts increased the unions’ legal mobilisation after 1990. However, it is fair to think that the expansion of institutional opportunities for workers to file complaints has allowed this union tactic to become more common.

The Limitation of Opportunities to Use Alternative Tactics: The central role that legal mobilisation holds in the Chilean unions’ repertoire and their offensive approach today also can be linked to the limited opportunities that exist to turn to as alternative means of resistance. Institutional obstacles to effective strikes established by the 1979 Labour Plan and the organisational weakening of the unions during the 1990s forced changes in unions’ tactics.

The other face of the policies that strengthened the system of labour law enforcement was the failure of the Concertación governments to restore protections for workers to really exert their right to strike. The Labour Plan seriously limited the abilities of unions to engage in this type of tactic. It strictly regulated the process and prohibited striking outside of the confines of company-level collective bargaining. Moreover, if workers conducted a strike, their jobs were guaranteed for only 59 days, after which the employer could fire them without any justification. Furthermore, the Plan allowed employers to hire workers to replace strikers during conflict, which clearly weakened the impact of the tactic.

The governments that came into power after the dictatorship did little to radically change these rules. A set of reforms that was approved in 1991Footnote ⁶⁶ failed to introduce major improvements in regard to strike protections. The package set some conditions for the replacement of workers during a conflict, but it did not eliminate the practice or ensure that strikers would be able to keep their jobs. Indeed, the new law stated that employers had the right to hire replacement workers from the first day of any strike by including in their final offer (a) stipulations identical to those set out in the previous collective bargaining agreement; (b) a wage readjustment to at least the inflation level; and (c) a cash bonus paid to each replacement worker. If their last offer did not meet these criteria, the law authorised them to replace workers at the start of the 15th day of the conflict.Footnote ⁶⁷ Moreover, the new law did not explicitly prohibit the replacement of workers with internal staff, which became a common business practice. Finally, the reform forced employers to provide explanations for firings, as was the case before the Labour Plan. Nevertheless, this measure was rendered ineffective as the law allows employers to use the principle of ‘company needs’ to justify dismissals.Footnote ⁶⁸ As this excuse is sufficiently ambiguous to make it difficult to challenge in court, it allows employers to easily get rid of strikers.

Chilean unions would have to wait until the labour reform of 2016 for the actual removal of the employers’ right to replace workers during strikes.Footnote ⁶⁹ However, this reform created a new system of ‘minimal services’ to guarantee the functioning of companies during conflicts, which some union leaders viewed as a trick designed to limit the power of strikes. Moreover, the restriction of strikes to those unions that are in a collective bargaining process and the ability to fire recent strikers due to ‘company needs’ were kept.

Along with the legal restrictions, the unions began to face difficulties mobilising workers to strike or engage in tactics involving an active commitment on their part. Once considered among the strongest in Latin America, Chilean unions suffered a significant membership decline between 1973 and 2006. Neoliberal policies made it difficult for workers to participate in unions, as they limited the incentives to organise, promoted flexibility in the labour market and dismantled national industry – once the core of union membership. The cultural shift accompanying the development of the market economy and class identity crisis also contributed to this trend. The largest drop in union density occurred during the dictatorship. In the early 1970s, approximately 30 per cent of the labour force was affiliated with a union.Footnote ⁷⁰ That number dropped to just 16 per cent by the end of military ruleFootnote ⁷¹ and did not improve as expected following the return to democracy. During the 1990s, union density fell almost as sharply as it had during the previous years. It slightly increased from 14.5 in 2006 to 17 per cent in 2014, but did not recover to the level that it had reached prior to the coup.

The difficulty of mobilising workers to strike has also been exacerbated by divisions within the unions. Since 1990, it has become common to create a company-level union without any affiliation to one of the top three levels of union organisation.Footnote ⁷² Numerous divisions, many of which continue to this day, also occurred at different levels of the union structure. Even the CUT, which maintained its cohesion despite significant internal political differences throughout the twentieth century, has suffered two critical schisms that gave rise to new peak unions since 1990.Footnote ⁷³ The lack of organic connections to other union structures and disputes among leaders caused company-level unions to lose the capacity to seek out external support for their mobilisations or to coordinate massive strikes aimed at broader goals.

These legal and organisational changes have had a negative impact on strike activity. While 1,130 strikes occurred in the private sector in 1970, just 330 took place in 2016.Footnote ⁷⁴ The downward trend in strike activity ended in 2005, and the total number per year jumped from 195 to 330 in 2016. A similar turn was observed in the number of strikes that were voted for but not launched, which increased from 538 to 824 during the same period.Footnote ⁷⁵ However, these numbers continue to be much lower than those observed prior to the coup.

While there are no data for precisely measuring the degree to which the weakening of the right to strike and union organisation favoured legal mobilisation on the part of Chilean unions, it is true to say that these trends have occurred simultaneously. In this sense, it is logical to think that there is a connection between these phenomena, as the international literature suggests.

Differences between Unions

The historical conditions that support the central place of legal mobilisation in Chile do not necessarily explain the differences that can be observed between the unions within this country. Which unions are more likely to resort to legal mobilisation? Analysis of the ENCLA data, analysed in BLR models, helps us to answer this question.

Table 4 summarises the BLR models. (See the section ‘Data and Methods’ above for details of the parameters used.) As the first model shows, the influence of strikes on legal mobilisation is statistically significant when this influence is controlled for company size, average wage and union size. However, in contrast to what is anticipated in the literature, the influence is positive. The probability of unions filing complaints against a company is 3.68 times higher if they hold a strike. Therefore, the evidence does not support the hypothesis of a trade-off between strikes and legal mobilisation. Chilean unions will not necessarily choose between the two tactics.

Table 4. BLR Models

Notes: See the text for the model parameters.

The probability and associated errors are reported.

*p < 0.01, **p <0.05, ***p < 0.005.

^a Estimator of out-of-sample prediction error.

^b Criterion for model selection among a finite set of models.

This result can be interpreted as a reflection of the institutional difficulties that unions face when defending workers’ interests in the Chilean context. The weakness of the right to strike in Chile leads unions that still use this tactic to pursue complementary actions in order to strengthen their cause. Legal mobilisation may be a tool for reversing a strike result that was relatively unfavourable to the workers or for forcing companies to meet the terms of agreements reached during the conflict. In other words, legal mobilisation can be used to continue the strike by other means. Furthermore, legal mobilisation may allow unions to combat sanctions issued by the company against the organisation or the strike participants. The interviews conducted in the context of this research offer examples of all these cases.

The reciprocal relationship between legal mobilisation and strikes can also be understood in another way. Unions can see in a strike a means to impose a demand on employers to respect a decision made by Labour Office or a judge when the fine or the sanctions are not enough to force the companies to change their behaviour. Moreover, unions can find in strikes a tool to give visibility to their cause and add pressure to courts and the Labour Office. This does not mean unions decide to go on strike primarily for these reasons – normally the main motives are financialFootnote ⁷⁶ – but that they harness the opportunity opened by the strike to bolster legal mobilisation. Nor does the complementarity between the two tactics imply that legal mobilisation increases the probability of a strike. In fact, in the Chilean context, legal restrictions regarding striking are too strong to make this course of action likely. It is more reasonable to think that the causal relationship goes the other way: strikes encourage legal mobilisation.

Model 2 tests the hypothesis that unions with weaker organisation turn to legal mobilisation more frequently. The model includes union size, control and network as independent variables. As in the previous analysis, the average wage and the company size are used as a control variable.

As this model shows, union size and control do not significantly affect the likelihood of unions resorting to legal mobilisation. Keeping the other variables constant, only the union network has a statistically relevant influence over the dependent variable. However, contrary to expectations, this influence is positive. The probability of unions resorting to legal mobilisation is 1.84 times higher if they are affiliated with a broader union structure.

This result suggests that company unions opt for legal mobilisation when they have sufficient external support to guarantee positive results through this tactic. It is not weakness but strength that leads them to choose resistance through filing labour complaints. On the one hand, federations, confederations and peak unions offer company-level unions a network of workers who can potentially be mobilised to support their cause. This gives weight to the company-level unions’ claims and can be key for the success of the complaint filed with the Labour Office or the courts. Alternatively, legal expertise is important for the unions to frame their cause in terms of a rights conflict and to successfully present and defend it throughout the different stages of the judicial processes. Broader union structures can provide company-level unions with access to a lawyer, legal information, and even financial resources to pay the costs of these processes, while isolated company-level unions normally have difficulties obtaining these resources on their own.

Model 3 compares the influence of ‘striking’ and ‘union network’ on the dependent variable. Controlling for union size, company size and average wage, the influence of both variables on the likelihood that the union will turn to legal mobilisation remains, although the variable ‘striking’ seems to have a greater effect. This suggests that the need to sustain pressure on the company over time better explains the unions’ inclination towards legal mobilisation.