Definitive Report - Report No 368, June 2013

1. 215. The complaint is contained in a communication from the Confederation of Municipal Health Officials (CONFUSAM), the National Association of Public Servants (ANEF), the National Inter-enterprise Trade Union of Metallurgy, Communications, Energy and Allied Workers (SME), the National Unitary Confederation of Transport and Related Workers of Chile (CONUTT), the Trade Union Federation (FESINEM), the Tenth Region Federation of Trade Unions of Fishing Industry Workers (FETRAINPES), the National Seafarers’ Confederation (CONGEMAR), the National Federation of University Health Service Professionals (FENPRUS), the Temporary Trade Unions, the Coordinating Confederation of Commerce Trade Unions, the Temporary Workers’ Federation, the Pharmacies Federation, the North-West Trade Union, the Banking Confederation and the Tresmontes Lucchetti Subcontractors, dated 20 October 2011.
2. 216. The Government sent its observations in a communication dated 28 February 2013.
3. 217. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 218. In their communication of 20 October 2011, the CONFUSAM, ANEF, SME, CONUTT, FESINEM, FETRAINPES, CONGEMAR, FENPRUS, the Temporary Trade Unions, the Coordinating Confederation of Commerce Trade Unions, the Temporary Workers’ Federation, the Pharmacies Federation, the North-West Trade Union, the Banking Confederation and the Tresmontes Lucchetti Subcontractors allege that the Government has recently submitted a bill to Parliament which, if approved, would – as is the case with most current legislation – violate the principles of freedom of association and Conventions Nos 87, 98 and 135, as it not only criminalizes a range of legitimate trade union protests and actions (occupying workplaces and streets) but also makes workers’ representatives who organize such activities criminally liable for any public disorder that occurs. Furthermore, public disorder has been upgraded from a minor to a more serious offence.
2. 219. The complainants consider that, if approved, this legal initiative would criminalize strikes, occupations and pickets, and that hundreds of social and union leaders would be prosecuted and held in custody while on trial, even if the accused were innocent. Specifically, the bill contains the following provisions:
   • Section one. Amend the Penal Code as follows:
     • (1) In section 261, add the following subparagraph 2: “This section shall be understood to cover members of the forces of law and order and public security and officials of the Gendarmerie of Chile going about their duties.”
     • (2) Replace section 262 with the following:
   • Section 262. The offences referred to in the previous section shall be punishable by a short-term prison sentence of medium length if any of the following circumstances pertain:
     • 1a. If an attack involves the use of weapons.
     • 2a. If, as a result of coercion, the authorities agree to the perpetrators’ demands.
   • If attacks involve assault against the authorities or those coming to their aid, the penalty shall be a short-term prison sentence of minimum to medium length.
   • If these circumstances do not apply, the penalty shall be a short-term prison sentence of minimum length.
   • In determining whether an attack has involved the use of weapons, the provisions of section 132 and the Arms Control Act, No. 17798 shall apply.
   • The penalties stipulated in this section shall be imposed if an attack against the authorities does not constitute an offence for which a greater penalty is established in law, in which case only the greater penalty shall be imposed.
     • (3) Substitute the following for section 269:
   • Section 269. Those who take part in disorder or any other act of force or violence involving any of the following shall be punishable by a short-term prison sentence of medium length:
     • 1. Paralysing or interrupting any public service, such as hospital or emergency services or those that provide electricity, fuel, drinking water, communications and transport;
     • 2. Invading, occupying or looting houses, offices or commercial, industrial, educational, religious or any other establishments, whether private, public or municipal;
     • 3. Impeding or altering the free movement of persons or vehicles along bridges, roads, highways or other similar areas used by the public;
     • 4. Attacking the authorities or their agents contrary to sections 261 or 262 or in any of the ways set out in sections 416, 416bis, 416ter and 417 of the Code of Military Justice or in sections 17, 17bis, 17ter and 17quater of Decree Law No. 2460 of 1979 or in sections 15A, 15B, 15C and 15D of Decree Law No. 2859 of 1979, as applicable;
     • 5. Using firearms, cutting or stabbing implements, or explosive, incendiary, chemical or other devices or materials capable of causing harm to persons or property; or
     • 6. Causing damage to the property of others, whether publicly, municipally or individually owned.
   • The penalty provided for in the preceding paragraph shall be imposed without prejudice to any other penalty, as appropriate, to which the perpetrators may also be liable for their involvement in damage, arson, attacks, robbery, offences under the Arms Control Act, No. 17798 or, in general, other offences committed in connection with the disorder or acts of force or violence.
   • Those who incite, promote or encourage disorder or other acts of force or violence that involve any of the factors mentioned in the first paragraph, provided that their occurrence was foreseen by the perpetrators, shall be punishable by a short-term prison sentence of medium length.
     • (4) Add, after section 269, the following new sections 269-A and 269-B:
   • Section 269-A: Any person who impedes or hinders the actions of members of the Fire Brigade or other public services intended to provide assistance in emergencies or other disasters or incidents that pose a threat to the safety of persons shall be punishable by a short term prison sentence of medium length, unless their actions constitute another offence incurring a greater penalty.
   • Section 269-B: For the offences covered by paragraphs 1, 1bis and 2 of this part, the perpetrators shall incur the maximum penalty, if the penalty has only one degree, or a penalty other than the minimum, if it has two or more degrees, if the offence was committed with faces obscured or in any other manner such as to impede, hinder or delay the identification of those responsible.
   • Section two …
   • This bill is signed by the President of the Republic, the Minister of the Interior and the Minister of Justice, as provided for in law.
3. 220. According to the complainants, this bill is a legal aberration that seeks to resolve social conflicts by jailing those who dissent or who do not agree with the decisions or actions of the Government, a ministry, an enterprise or a service, and thereby seriously undermines the basis of a plural and democratic society. According to the complaints, their opinion of the bill is shared by experts in relevant legal matters, who, among other things, have pointed out that the legislation as drafted would give rise to many doubts among judges in view of the significant problems of placing an interpretation on “violence or public disorder”; “disorder offences have always been problematic, because the description given by the legislator is never sufficient to cover all circumstances”; and looting is robbery with force and the State Security Act exists to punish incitement to violence, so new legislation is not required.
4. 221. The complainants add that a significant group of trade union leaders from various sectors and branches of production in both the public and private sphere recently requested the Government to withdraw this legal initiative, but without success; they will therefore shortly request Parliament not to process this governmental initiative. The complainants express their concern at the fact that the Government has chosen the logic of repression to tackle social conflicts and is continuing along the path of failing to honour its international commitments, is not respecting ILO Conventions that it freely agreed to ratify and, far from rectifying this unlawful behaviour, is attempting to reduce its compliance even further. Lastly, the complainants request that a mission be sent to Chile to meet all those concerned, with the aim of finding specific ways to halt the systematic violation of ILO standards that Chile has ratified and to amend legislation and make the necessary administrative changes to harmonize all Chilean laws with the ILO standards ratified by the Chilean State.

B. The Government’s reply

1. 222. In its communication of 28 February 2013, the Government states that the bill to strengthen public order is intended to protect those who wish to demonstrate peacefully and punish those who resort to violence and cause serious public disorder when strikes occur. According to the Government, it is vital to point out that this bill is not an existing provision of Chilean legislation, but merely a proposal from the Executive Authority submitted to the National Congress in October 2011 for due parliamentary debate by democratically elected representatives. It is currently being discussed by the National Congress and has not been approved.
2. 223. The Government adds that, as a result of the discussion among deputies in the National Congress, the content of the above bill has changed substantially since the complaint was presented (the Government has sent the most recent version of the bill, bulletin No. 7975 25, approved by the Public Security and Drugs Committee of the House of Deputies in August 2012). Lastly, the Government reiterates that approval or rejection of this legal initiative by the National Congress is still pending. Nevertheless, even if it is approved as currently drafted, it would not violate the ILO Conventions cited by the complainants either in form or in substance, as it protects those who demonstrate peacefully and punishes those who cause serious public disorder with violence or intimidation. In reality, the provisions of the bill that are referred to, as well as representing common sense, are fully in line with the fundamental principles of trade unionism and the relevant criterion established by bodies involved in monitoring compliance with ILO Conventions.

C. The Committee’s conclusions

1. 224. The Committee observes that the complainants allege that the Government has submitted a bill to Parliament which, if approved, would violate the principles of freedom of association and Conventions Nos 87, 98 and 135, as it not only criminalizes a range of legitimate trade union protests and actions (occupying workplaces and streets) but also makes workers’ representatives who organize such activities criminally liable for any public disorder that occurs.
2. 225. In this respect, the Committee takes note of the Government’s statements that: (1) the bill to strengthen public order is intended to protect those who wish to demonstrate peacefully, punishing those who resort to violence and cause serious public disorder when a demonstration occurs; (2) this is not an existing provision of Chilean legislation, but merely a proposal from the Executive Authority, submitted to the National Congress in October 2011 for due parliamentary debate by democratically elected representatives, which is currently being discussed by the National Congress and has not been approved; (3) as a result of discussion among deputies in the National Congress, the content of the above bill has changed substantially since the complaint was presented (the Government has sent the most recent version of the bill, bulletin No. 7975-25, approved by the Public Security and Drugs Committee of the House of Deputies in August 2012); (4) approval or rejection of this legal initiative by the National Congress is still pending but, nevertheless, even if it is approved as currently drafted, it would not violate the ILO Conventions cited by the complainants, as it protects those who demonstrate peacefully and punishes those who cause serious public disorder with violence or intimidation; and (5) the provisions of the bill are fully in line with the fundamental principles of trade unionism and the relevant criterion established by bodies involved in monitoring compliance with ILO Conventions.
3. 226. The Committee observes that the content of the bill, as provided by the complainants, includes provisions intended to punish those who commit or instigate disorder or acts of force or violence involving, among other things: paralysing or interrupting hospital or emergency services or those that provide electricity, fuel, drinking water, communications and transport; invading, occupying or looting houses, offices or commercial, industrial, educational, religious or any other establishments, whether private, public or municipal; or impeding or altering the free movement of persons or vehicles along bridges, roads, highways or other similar areas used by the public. However, the Committee observes that a new version of the bill, supplied by the Government, differs in that, for instance, it provides for those who take part in “serious” disorder to be punishable by a short-term prison sentence of minimum to medium length and that public disorder shall be considered serious if it involves any of the following: (1) paralysing or interrupting, by means of force against property or violence or intimidation against persons, any public service, such as hospital or emergency services or those that provide electricity, fuel, drinking water, communications and transport; (2) invading, with violence or intimidation against persons and without the consent of the owners, houses, offices or commercial, industrial, educational, religious or any other establishments, whether private, public or municipal; (3) looting houses, offices or commercial, industrial, educational, religious or any other establishments, whether private, public or municipal; (4) impeding or altering, with violence or intimidation against persons, free movement along bridges, roads, highways or other similar areas used by the public and resisting actions by the authorities; (5) attacks on the authorities; (6) use of firearms; and (7) causing damage to the property of others.
4. 227. The Committee recalls that “the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike” and that “trade unions should respect legal provisions which are intended to ensure the maintenance of public order; the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organize the holding and proceedings of their meetings in full freedom”, in particular “during labour disputes” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 667, 147 and 131]. The Committee also recalls that the right to demonstrate and the right to strike, peacefully exercised, are essential elements of freedom of association and that, in exercising the rights provided for in this Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land. Moreover, the Committee indicates that the authorities should not resort to arrests and imprisonment in connection with the organization of, or participation in, a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association (see Digest, op. cit., paragraph 671).
5. 228. Under these circumstances, observing that the bill to which the complainants object has been replaced by another text supplied by the Government, the Committee emphasizes that the final text of the bill must not allow for interpretations susceptible to infringe the right to carry out peaceful demonstrations and strikes, and firmly expects that consultations will be held on the bill in question with the most representative workers’ and employers’ organizations and that the above principles and considerations will be duly taken into account.