FUSIÓN, DIVISIÓN Y TRANSFORMACIÓN DE SOCIEDADES COMO POSIBLES SUPUESTOS DE SUCESIÓN DE EMPRESA EN EL DERECHO CHILENO¹

Objectives: The purpose of this article is to analyze in which cases a corporate restructuring (i.e., merger, division, or transformation) involves an enterprise succession from a labor perspective, under the terms of article 4 of the Chilean Labor Code. Based on this, the relevant effects, and practical problems in each of these cases are presented under the current regulatory landscape, linking the applicable corporate provisions with the mechanisms for the protection of the individual and collective rights of workers enshrined in labor legislation. Methodology: This paper uses the dogmatic methodology, through the critical study of positive law, doctrine, and jurisprudence. Moreover, the comparative method is used as an auxiliary methodology, in particular, by means of a micro-comparison of the regulation of the so-called “enterprise succession”, between Chilean law and other legal systems that present alternative legal solutions. Results: The statute for the protection of workers in cases of enterprise reorganizations is found, in general terms, in article 4, paragraph 2, of the Labor Code, which establishes the so-called “enterprise succession”. This provision is fully applicable to the case of mergers and divisions of companies, but not to transformations since the latter do not constitute a change of ownership of the enterprise. Notwithstanding the problems and opportunities for improvement that it presents, said rule enshrines the continuity of employment contracts after the merger or division of the employing entity when there is a total or partial change of ownership of the enterprise and, in addition, it configures a guarantee concerning labor debts. The biggest problem lies in the absence of rules of general application on the admissibility and effects of this type of operations and, on a related not, in the absence of provisions in the corporate legislation that refer specifically to workers, matters in which a substantial legal reform should be studied. Contributions: The contribution of this research, which is part of a larger project, is to link the labor provisions on enterprise succession with the corporate regulations regarding mergers, divisions, and transformations of companies under Chilean law. Based on this, certain problematic cases were identified, as were various imperfections in the current regulations, and some proposals were made for their improvement.