Report in which the committee requests to be kept informed of development - Report No 327, March 2002

1. 312. The complaint is contained in a communication from the Trade Union International of Workers of the Energy, Metal, Chemistry, Oil and Related Industries (UIS-TEMQPIA) dated 18 June 2001.
2. 313. The Government sent its observations in a communication dated 6 September 2001.
3. 314. 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. The complainant's allegations

1. 315. In its communication dated 18 June 2001, the Trade Union International of Workers of the Energy, Metal, Chemistry, Oil and Related Industries (UIS-TEMQPIA) alleges that, by using a provision of the Labour Code, the Bianchi Bicycle Factory S.A. (FABISA) hired workers to replace trade union members who were carrying out a strike beginning on 30 April 2001 in order to obtain a wage increase.
2. 316. The complainant adds that on 3 May 2001, after three days of a legal strike, when the trade union members were peacefully demonstrating at the entrance gate of the company, executives of the enterprise ordered a driver belonging to an outside transport company to drive through a strike picket that was blocking the access of the vehicle, which was transporting executives and strike-breakers. The complainant states that, disobeying police orders to park the bus so that the workers could enter on foot, the driver drove into the strikers. As a result, Mr. Luis Lagos was killed and Mr. Donaldo Zamora seriously injured.

B. The Government's reply

1. 317. In its communication dated 6 September 2001, the Government states that the FABISA enterprise and the trade union had concluded a collective agreement that was due to expire in May 2001; on 19 March 2001 the trade union initiated collective bargaining by presenting a draft collective agreement, involving 90 unionized workers and 22 members who up to that time had not been unionized. The enterprise responded within the time limit, rejecting the workers’ proposals. On 26 April the workers voted in favour of rejecting the employer’s final offer and approved a strike by 90 per cent of quorum. The strike began on 30 April at 8.00 a.m., and as soon as it had begun the employer hired workers to replace the strikers. The replacement of workers was carried out in accordance with the legislation in force (sections 380 and 381 of the Labour Code), and therefore there can be no legal objection to the employer’s conduct.
2. 318. The Government adds that the workers involved gathered in a public demonstration at the entrance gate of the enterprise and that tensions arose between the parties. For this reason, on 2 May the employer sought the good offices of the North Santiago Municipal Labour Inspectorate, which did not take effect immediately as the trade union leaders could not be located. On the fourth day of the strike, 3 May, at about 7.40 a.m., when a group of demonstrators were attempting to prevent replacement workers brought in by bus from entering the enterprise, the worker Luis Lagos was killed and another worker, Donaldo Zamora, was injured when they were run over by the vehicle driven by Francisco Curilén Suárez. The Government states that these acts are the subject of proceedings filed under No. 1086-3 with the 18th Criminal Court of Santiago, the plaintiffs being the Confederation of Metal Workers (CONTRAMET), the trade union of workers of the FABISA enterprise, and the families of the deceased and injured workers. Proceedings have been filed against the driver of the bus for homicide and are now at the investigation stage with certain formalities still pending, and the court is examining the responsibility of the chief administrative officer of the FABISA enterprise, who was in the bus that ran over the victims, but there is still not enough evidence to indict him.
3. 319. The Government states that in view of the public impact of the death of the worker, Luis Lagos, on the following day the activity of the enterprise was suspended. The talks between the parties were broken off and only resumed, following intervention by the Regional Labour Directorate, during the week after the tragedy that cost the worker’s life; the enterprise continued operating with replacement workers and the strikers resumed their demonstrations around the factory and in public areas, this time denouncing the enterprise’s responsibility for the worker’s death.
4. 320. Lastly, the Government states that: (1) on 14 June 2001, the workers concerned decided to stop the legal strike and went back to work on the following day, on the terms laid down by the employer in its initial reply, which was also its final offer; (2) the week after the process was finalized, some 18 workers were dismissed (the trade union leaders filed a complaint against this with the Regional Labour Directorate, which prompted the convening of a tripartite meeting at which a number of agreements were reached, including a review of the situation of the dismissed workers; examination of the proposal that remuneration be based on productivity; an improvement in the labour relations climate, seeking the advice of a consultant; and consideration of the possibility of voluntary retirement of the workers with satisfactory compensation); (3) according to recent conversations with trade union leaders, these agreements were being carried out, but five more dismissals of workers involved in the collective bargaining process had been confirmed; and (4) it was observed that the management of the enterprise and the trade union leaders have made efforts to restore relations, but a climate of resentment and mistrust still persists among the workers and has not yet been overcome.

C. The Committee's conclusions

1. 321. The Committee notes that in this case the complainant alleges that the FABISA. enterprise hired workers to replace members of a trade union who were engaged in a strike and that homicide was committed and serious injuries inflicted on strikers attempting to block access to the factory of a bus carrying executives and workers hired to replace the strikers.
2. 322. As regards the allegation concerning the replacement of strikers under the provisions of the Labour Code, the Committee notes that after the enterprise had rejected a draft collective agreement, the workers called a strike and, since the beginning of the strike, the employer hired workers to fill the strikers’ posts and that the replacements were in accordance with the legislation in force. The Committee notes that the recent legislative reform maintains the possibility of replacing strikers. Section 380 of the Labour Code provides that:
   • If a strike takes place in an enterprise or an institution in which the interruption of the work could cause real and irreparable damages to its equipment or damage the health of users of a health or social assistance establishment or which provides essential services, the trade union or negotiating agent has to submit a list of indispensable workers in order to accomplish the work the interruption of which could cause such damage. The union or negotiating agent must submit to the employer, following the employer’s written request, the list of workers who will be part of the emergency team, within 24 hours of the written request. In case of non-compliance, the employer can ask the Labour Inspection to intervene in this regard. The previous provision applies in the case of a refusal from the workers to provide the said list, or when there is a disagreement concerning who should be on the list. The request to the Labour Inspection must be submitted by the employer within five days following the refusal of the workers or in case of disagreement on the content of the list, and the decision must be applied within 48 hours following the employers request. The decision of the Labour Inspection can be appealed to the Labour Court within five days of the said decision or once the abovementioned delay has expired.
   • Article 381 of the Labour Code provides:
   • It is forbidden to replace strikers under the last offer provides at least, in the manner and delays provided for in article 372(3): (a) the same provisions as those of the contract, the collective agreement or arbitral award (adjusted to take into account the cost-of-living index, as set by the National Institute of Statistics or by the competent organization); (b) an annual minimum increment of the consumer price index for the length of the contract, except as regards the last 12 months; (c) a replacement indemnity with a value equal to four motivation premiums for each replacement worker. The total amount of this indemnity will be paid, in equal parts, to striking workers, within five days from the end of the strike. In this case, the employer may, from the first day of the strike, hire the workers it deems necessary to fulfil the duties of strikers. Moreover, the workers may, in this case, choose to go back to their post on the 15th day after the beginning of the strike. Should the employer not complete an offer in line with the conditions provided for in subparagraph 1 and in the circumstances therein indicated, it may hire the workers it deems necessary from the 15th day of the strike, provided it gives the indemnity mentioned in subparagraph 1(c). However, the employers may hire the workers it deems necessary to fulfil the duties of strikers, from the 15th day of the strike. Where no collective agreement is in force, the offer mentioned in subparagraph 1 is considered as made if the employer offers at least a minimum annual increment, indexed on the consumer price index for the length of the contract, except as regards the last 12 months. Under this article, the employer may present more than one offer, provided that at least one of these proposals fulfils the conditions provided for in said provision and, as the case may be, provide for the indemnity mentioned in subparagraph 1(c). If the workers decide to reintegrate these parts individually under this article, they do so at least under the conditions mentioned in the employer’s last offer. Once the employer has exercised the rights mentioned in this article, it may not withdraw the offers mentioned therein.
   • In this respect, the Committee recalls that “the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 570]. The Committee also observes that the Committee of Experts on the Application of Conventions and Recommendations has made observations to the same effect on this issue with respect to Chile. Regretting that the FABISA enterprise – which manufactures bicycles – has hired workers to replace strikers, the Committee requests the Government to take the necessary steps to amend sections 380 and 381 of the Labour Code which allow the replacement of workers engaged in a strike in services that are not essential in the strict sense of the term (i.e. services whose interruption may endanger the life, personal safety or health of the whole or part of the population).
3. 323. As regards the allegation concerning the death of Mr. Luis Lagos and the serious injuries sustained by Mr. Donaldo Zamora when they attempted, together with other workers, to block the access to the factory of a vehicle transporting executives and other workers, the Committee notes that the Government states that a judicial inquiry is being carried out in which proceedings have been filed against the driver of the bus for homicide and that the responsibility of the chief administrative officer of the enterprise who was riding in the bus is being examined. In this respect, deeply deploring the death of and serious injuries sustained by the strikers in question, the Committee expresses the hope that the judicial proceedings will determine those responsible and be concluded rapidly and that in the event it is determined that a crime has been committed, the guilty persons will be sanctioned. The Committee requests the Government to keep it informed in this respect.
4. 324. Lastly, the Committee observes that the Government states that after the end of the strike a number of workers were dismissed in two stages (18 at first, followed by five more) and that although the management of the enterprise and the trade union leaders have made efforts to restore relations, a climate of resentment and mistrust persists among the workers and has not been overcome. In this respect, the Committee also notes that the Government states that after the initial 18 dismissals following the strike, it was agreed that their situation would be reviewed, but that five more workers were subsequently dismissed. The Committee recalls that “respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike” [see Digest, op. cit., para. 593]. Regretting these dismissals, the Committee requests the Government to endeavour to ensure that the agreement to review the situation of the workers initially dismissed is respected, that the situation of those subsequently dismissed is also reviewed, and that if it is found that they were dismissed for exercising their legitimate trade union activities effective measures are taken to reinstate them. The Committee requests the Government to keep it informed of any steps taken in this respect.
5. 325. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.