Definitive Report - Report No 137, 1973

1. 18. This case was dealt with by the Committee at its Session of November 1972 when it presented a report which appears in paragraphs 50-60 of its 134th Report, which was submitted to the Governing Body for examination at its 189th Session (February-March 1973). Since new information was received from the Government the Governing Body decided at that meeting to postpone examination of the case.
2. 19. Chile has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 20. The complaint is contained in a communication dated 30 November 1971. In another communication of 12 January 1972 the complainants submitted additional information. The communications were sent to the Government, which submitted its observations on them on 29 May and 11 December 1972 and on 10 February 1973.
2. 21. In a letter dated 30 November 1971 the complainants alleged that the Government had violated the principles of freedom of association in Manufacturas Sumar, which had been taken over and placed under the control of an administrator appointed by the Ministry of Economy and Commerce.
3. 22. The complainants "in their capacity as managers" of the above-mentioned trade union stated that they had been dismissed from the company on 20 August 1971 in spite of the protection afforded by labour law to trade union leaders and that thirty-five other workers had also been dismissed from the company on the same date. According to the complainants their dismissal as trade union leaders is contrary to section 379 of the Labour Code and section 10 of Act No. 16455. The complainants also alleged that they were dismissed by reason of their trade union activity in the defence of their companions at work who had been unjustly persecuted because of their political opinions. The complainants added that they had instituted court proceedings to secure the reinstatement of the persons concerned on 10 September 1971. The complaint provided no further information about the other thirty-five workers.
4. 23. According to section 379 of the Labour Code the members of the executive Committee of the trade union may not be dismissed from an undertaking without the consent of a labour judge whose consent shall be granted only in certain clearly specified cases. Section 10 of Act No. 16455, which lays down rules for the termination of contracts of employment, provides that trade union leaders may not be dismissed by their employers without authorisation from a judge, that such authorisation may be granted only in certain clearly specified cases (assault, insulting language or highly immoral conduct, intentional damage to plant, etc.). It was stated that this prior authorisation had never been given by a judge.
5. 24. In its reply dated 29 May 1972 the Government does not question the status of Messrs. Toro Trujillo and Jara Viveros as trade union leaders or the protection against dismissal which the provisions mentioned guarantee. However, the Government affirms that the persons concerned were covered by one of the specific cases permitting dismissal, since they had organised a stoppage of work on 20 August 1971 in order to prevent the administrator appointed by the Government from carrying out his duties. This stoppage, according to the Government, was manifestly unlawful because it not only failed to comply with the requirements laid down by Chilean law for stoppages to be considered lawful, but also because it was motivated by non-occupational considerations". The Government stated, however, that owing to an erroneous interpretation of the law the administrator of the company did not apply for authorisation from the labour judge for dismissing the trade union leaders concerned. The Government added that in the case mentioned by the complainants the administrative authorities could not be held responsible for this error of interpretation since responsibility lay with the administrator, who, in spite of his status as a civil servant, was independent of the administrative authorities in so far as he represented the undertaking. The Government states that if a request for authorisation to dismiss the officials had been made, it would have been granted by the judge.
6. 25. It appears from the Government's communication, which provides information on the progress made in the judicial proceedings instituted by the persons concerned after their dismissal, that the matter is still under consideration. The Government states, however, that apart from the court proceedings, negotiations have been held with the persons concerned in an effort to meet agreement. The proceedings instituted by the other workers dismissed in connection with the same events are now closed; some of the persons concerned had withdrawn their appeals and the others had been compensated. The President of the Republic had personally intervened with a view to an amicable settlement being reached.
7. 26. In the light of this information the Committee presented certain interim conclusions in its 134th Report. The Government in its communication of 11 December 1972 pointed out that the complaint had not been submitted by the Non-manual Workers' Union of Manufacturas Sumar but by two ex-leaders of that union, that it did not appear to have been signed either by either the President or the Secretary of the trade union, and that it did not bear the address or seal of the organisation. Consequently the Government requested that the report of the Committee should be modified accordingly. Subsequently in its communication of 10 February 1973 the Government presented additional information concerning the substance of the question.
8. 27. In this communication the Government repeats certain statements which appeared in its reply of 29 May 1972, concerning the lawfulness of the stoppages in which the complainants and other workers took part. The Government adds that Act No. 16455 of 1966 provides that one of the grounds on which an employment contract may be terminated is refusal without justification to perform the tasks agreed in the contract and maintains that a stoppage constitutes such a cause, as Chilean tribunals have considered according to the jurisprudence of the country. Thus in accordance with labour legislation the social and economic claims of workers may be expressed only through the procedure laid down in the Labour Code and in Regulation 323 concerning collective disputes. The process of conciliation provided in legislation may be followed by a strike if there is no agreement between the parties, but an unwarranted interruption of work, or a stoppage, is punishable by the termination of the contract of employment.

B. B. The Committee's conclusions

1. 28. In various previous cases', the Committee has considered that the fact of requiring certain conditions to be filled before a strike is considered legal, provided always that such conditions are reasonable, does not constitute a violation of trade union freedom. The new information supplied by the Government shows that the complainants and other workers declared a strike in an unwarranted manner and without having complied with the requirement of prior conciliation as provided by law. The Committee has also considered that the principle according to which a worker or trade union leader must not suffer prejudice on account of his trade union activities does not necessarily imply that the fact of holding trade union office confers upon the holder an immunity against possible dismissal whatever its causes.