Razonabilidad y proporcionalidad: la exclusión en contratos estatales por condena en procesos laborales en Chile: Análisis de su constitucionalidad a la luz de la jurisprudencia del Tribunal Constitucional

The duty that guides contemporary constitutional and democratic states is not only to determine whether a state action is legally valid with respect to the powers granted by law, but also whether this action is the most appropriate, necessary and proportional to pursue a specific objective. This condition takes on special relevance when there is the exercise of a sanctioning power, which implies the need for the legal operator to recognize the guarantees and effectiveness of the constitutional norms and principles, both in the general and abstract formulation of the law, and in its application and concrete cases. Thus, not just any sanction can be considered constitutional: even if it is contained in the law and in the abstract does not appear to be incompatible with constitutional norms as it responds to a legitimate aim. This presupposition gives direction to the present article, which, following a deductive methodology and a correlational analysis, focuses its interest on the study of the application of article 4, paragraph 1 of Law No. 19.886, which orders the exclusion of Chilean or foreign natural or legal persons from the possibility of contracting with the Administration for condemnation of anti-union practices or infringement of the fundamental rights of the worker. This exclusion, in essence, materializes as a sanction derived from the labor protection procedure contemplated in articles 485 and following of the Chilean Labor Code. In this context, the general objective of this paper is to carry out an analysis of the proportionality of the sanction of contractual exclusion with the administration for employers who, in the framework of labor protection proceedings, have been convicted of anti-union practices or infringement of workers’ fundamental rights, in accordance with the jurisprudence of the Constitutional Court of Chile and the regulations in force, including the new law enacted in order to address the discussion on the unconstitutionality of the aforementioned regulation. To this end, the article will be divided into six sections, before the conclusions. The first is intended to review the concept of reasonableness and proportionality in the Constitutional State, and the second to the jurisprudential criteria of proportionality in the context of Chile. In turn, the third reviews the contractual exclusion with the administration as a sanction regarding cases of labor protection, while the fourth studies the sentences that have referred to the subject. The fifth makes an assessment of the proportionality of the measure, to end in the sixth with the legislative reform that was integrated into the Chilean legal system, which comes into force at the end of 2024.