Definitive Report - Report No 367, March 2013

1. 346. The Committee last examined this case at its meeting in November 2011, and on that occasion submitted an interim report to the Governing Body [see 362nd Report, paras 422–445, approved by the Governing Body at its 312th Session (November 2011)].
2. 347. The Government sent its observations in a communication dated 5 October 2012.
3. 348. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 349. The Committee recalls that the allegations still pending were that, following a three-day strike in March 2009 over the non-payment of wages and the lack of security experienced by transport workers travelling through an area of ethnic unrest involving the Mapuche indigenous community (a “red zone”), the company Servicios Forestales El Bosque SA dismissed 65 trade union members. With regard to those allegations, at its November 2011 meeting the Committee made the following recommendation [see 362nd Report, para. 445]:
   • In order to pronounce itself on this case in full knowledge of all the facts relating to the unlawful nature of the strike or work stoppage by the complainant, as well as the dismissal of trade union members, the Committee requests the Government to send the text of the rulings of the Concepción Court of Appeal and the Supreme Court, with regard to the cases brought by the complainant organizations, as well as Decree No. 0648 of the National Labour Directorate, dated 7 February 2011.

B. The Government’s reply

1. 350. In its communication of 5 October 2012, the Government states that, with regard to the mass dismissals that occurred in March 2009, the acting inspector reports that, according to information obtained, the workers were dismissed following an unlawful strike, namely a strike which took place outside of the context of a collective bargaining process and held between 24 and 27 March 2009 by employees of that company, including members of the Trade Union Number Two “El Bosque” (SNDB). The strike had allegedly been called by Fenasitranfor with the aim of achieving better pay and working conditions. The grounds for dismissal were given as those provided for under article 160(3) of the Labour Code, specifically the failure of workers to turn up for work for two consecutive days with no valid reason, two Mondays in any given month, or a total of three days during the same period of time.
2. 351. The Government adds that background documents compiled by the Labour Directorate indicate that the work stoppage in question ended following the intervention of the respective Regional Labour Authority. The Government also states that the Provincial Labour Inspectorate of Los Ángeles reported that 35 of the workers dismissed in March 2009 filed a joint claim for unfair dismissal to the relevant court against Servicios Forestales El Bosque SA, which was rejected in a ruling issued on 31 August 2009 on grounds of failure to establish that the dismissals were unfair. Those workers filed an appeal for annulment to the Concepción Court of Appeal, which rejected that appeal. On 10 November 2009, the workers in question filed an appeal for unification of jurisprudence to the aforementioned court, which was rejected by the Supreme Court in case No. 9301/2009. Lastly, the Government states that the workers who were not involved in those court proceedings signed their respective settlements. The Government sent a copy of the Concepción Court of Appeal ruling rejecting the appeal for annulment filed against the ruling of the presiding judge of the Los Ángeles Labour Court which rejected the claim for unfair dismissal. According to the court, the constitutional guarantee that enshrines the right to protest was not violated; there is no reversal of the burden of proof, an argument put forward by the appellant, since the actors themselves recognized that they failed to provide services, as is clear in the claim, thus the burden of proving that there was a valid reason for their absence fell to them; and there is no evident breach of the rules on the appraisal of evidence. The Government also sent a copy of the Supreme Court ruling of 31 March 2010 in connection with the appeal filed against the ruling of the Concepción Court of Appeal seeking the unification of jurisprudence in order to annul the ruling issued and declare that the claimants had a valid reason for being absent from work on 24, 25 and 26 March 2009 and that their dismissals were unfair. The Supreme Court of Justice concluded that there were no different interpretations of the area of law or legal provisions in question and dismissed the appeal for unification of jurisprudence.

C. The Committee’s conclusions

1. 352. The Committee observes that in the present case the allegations still pending when it examined this case at its November 2011 meeting were that, following a three-day strike in March 2009 over the non-payment of wages and the lack of security experienced by transport workers travelling through an area of ethnic unrest involving the Mapuche indigenous community (a “red zone”), Servicios Forestales El Bosque SA dismissed 65 trade union members. The Committee recalls that on that occasion it concluded that, according to the Government, the dismissal of the 65 trade union members was the result of a work stoppage, lasting two days and implemented without prior notice, and was linked to the fact that existing legislation does not permit workers to exercise their right to strike outside of the context of a collective bargaining process. The Committee also notes that: (a) the judicial authority rejected the claims of the dismissed workers in a ruling issued on 31 August 2009; (b) the Concepción Court of Appeal rejected an appeal for annulment filed against the aforementioned ruling; and (c) the Supreme Court, in case No. 9301/2009, rejected an appeal for unification of jurisprudence. The Committee requested the Government to provide copies of the Concepción Court of Appeal and the Supreme Court rulings.
2. 353. The Committee notes that the Government reiterates the information provided in its previous reply to the effect that the dismissals in question were the result of an unlawful strike, namely which took place outside of a collective bargaining process, and that it sent copies of the rulings as requested. The Committee observes that, according to the Concepción Court of Appeal, the constitutional guarantee that enshrines the right to free protest was not violated; there is no reversal of the burden of proof, an argument put forward by the appellant, since the actors themselves recognized that they failed to provide services, as is clear in the claim, thus the burden of proving that there was a valid reason for their absence fell to them; and there is no evident breach of the rules on the appraisal of evidence. The Committee also notes that the Supreme Court of Justice concluded that there were no different interpretations of the area of law or legal provisions in question and dismissed the appeal for unification of jurisprudence.
3. 354. In this regard, while noting the contents of the rulings that had been requested, the Committee considers that, as it stated during its November 2011 meeting, the calling of a strike by a trade union, if deemed necessary, to protest against the non-payment of part or all of the workers’ wages and to demand better security conditions for transport and forestry services constitutes a legitimate trade union activity, including in cases where there is no negotiation process under way to draw up a collective agreement. Furthermore, regarding the Government’s argument that strike action in Chile is only possible within the context of a collective bargaining process, the Committee also stressed in its previous examination of the case that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 531]. In this regard, recalling that in the previous examination of the case it found that, according to the Government’s earlier reply in this case, existing legislation does not permit strike action (with or without prior notice) outside of the context of the collective bargaining process, the Committee requests the Government, in consultation with the workers’ and employers’ organizations, to take all necessary steps to amend legislation in line with the principles referred to in the conclusions.
4. 355. Lastly, taking into account that the dismissals of the 65 trade unionists were related to the application of legislation which is not in conformity with the principles of freedom of association, the Committee invites the Government to take, given the particular circumstances of this case, in the framework of social dialogue, the necessary measures to bring the parties together with a view to the reinstatement of the dismissed workers or other alternative remedial measures.