Definitive Report - Report No 337, June 2005

408. The Committee examined this case at its November 2004 meeting and submitted an interim report to the Governing Body [see 335th Report, paras. 567-665, approved by the Governing Body at its 291st Session (November 2004)].

1. 409. The Government sent new observations in communications dated 10 and 21 February, 18 March and 28 April 2005.
2. 410. 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. 411. At its November 2004 meeting, on examining allegations which mainly concern dismissals and other anti-union acts, as well as the violent repression of strikers, the Committee made the following recommendations [see 335th Report, para. 665]:
2. (a) As regards the allegations concerning the PLASTYVERG group of enterprises, the Committee requests the Government to send it a copy of the reports concerning the administrative investigations carried out and all of the judicial decisions which have been handed down.
3. (b) As regards the allegations concerning the violent repression of the national strike on 13 August 2003, the Committee is bound to take note of the obvious contradiction between the allegations and the Government’s reply, deplores any acts of violence which occurred during the general strike, and requests the Government to send any judicial decisions handed down in relation to the criminal proceedings referred to by the complainants or any other of the acts of violence mentioned by the Government.
4. (c) As regards the allegations concerning the HERPA S.A., Viñas Tarapacá y Santa Helena enterprises, the Committee requests the Government: (1) to indicate whether the latest administrative investigation in these enterprises gave rise to judicial proceedings and, if so, to inform it of their outcome; and (2) to provide information on the allegations concerning the detention of workers and violent police intervention to evict workers, despite the absence of the court order.
5. (d) As regards the allegations concerning the CODELCO state enterprise, the Committee requests the Government to carry out a full and impartial investigation, including into the injuries sustained by workers, and to inform it of its outcome, as well as the results of the dialogue that has been resumed between the trade union leadership and the enterprise.
6. B. The Government’s reply
7. 412. In its communication of 10 February 2005, the Government refers to the allegations related to the illegal suspension of activities carried out on 13 August 2003. In particular, it states that it has no knowledge of any legal rulings that may have been handed down in relation to criminal proceedings or any other type of violent act which might have occurred during the abovementioned suspension of activities. The Government adds that, in order for it to send information regarding a legal ruling handed down by a court, it must first be informed of exactly which court handed down the ruling, the name and surname of the person affected by the ruling, the date on which it was handed down, the name of the case and what it is about. Without this essential bare minimum of information, it is physically impossible to satisfy the Committee’s request that the Government send copies of rulings concerning cases of which the Government knows nothing.
8. 413. In its communication of 21 February 2005, the Government states the following with regard to the allegations of supposed violation of trade union rights by the enterprise CODELCO – Chile, “El Teniente” Division, concerning the Inter-enterprise Union of Employees of Subcontractors of CODELCO – Chile, “El Teniente” Division (SITECO) and the events which occurred on 15 and 16 December 2003 at the “El Teniente” mine:
9. – As to the case of the worker Enzo Pérez, who was supposedly hit by rubber bullets, following an exhaustive, impartial investigation by the Regional Ministerial Secretary for Labour and Social Security of the VI Region, the area in which the “El Teniente” mine is located, it was concluded that the worker in question had been hit by rubber bullets during the events of 15 and 16 December 2003. Having received medical attention, this individual was sent home in December 2003 and did not suffer from any after-effects or consequences. He is currently in perfect physical and mental health and is working normally as “Master Electrician, 1st Class” on the “El Teniente” site, Sub-6, for the subcontractors Soletanche Bachy Chile S.A., an associate enterprise of the “El Teniente” Division of CODELCO-Chile.
10. – As to the alleged case of two workers working for subcontractors who supposedly suffered serious injuries during clashes with the police unit which entered the “El Teniente” Division premises on 16 December 2003 in order to break up the illegal occupation of the installations, following an investigation, the Regional Ministerial Secretary for Labour and Social Security of the VI Region could not find any workers working for subcontractors who had suffered serious injuries.
11. – As to the allegation that 20 workers were injured and that one of them was hit 20 times by rubber bullets, in the course of a thorough, probing, impartial and objective investigation, the Regional Ministerial Secretary concluded that 20 workers suffered minor injuries as a result of clashes occurring during their illegal occupation of the “El Teniente” Division installations and that having received medical attention, they were discharged and sent home (December 2003).
12. – On the occasion of the public disorder events that occurred on 16 December 2003, as a result of the illegal occupation of the installations of the “El Teniente” Division, the Criminal Prosecutor for the VI Region initiated Case No. 03002001688-4 for public disorder offences. However, this case is now closed and is on file at the Office of the Regional Prosecutor, before whom the representatives of the workers and the enterprise, CODELCO – Chile “El Teniente” Division, met on various occasions. The enterprise declared it would not take action against the workers for the public disorder events of 16 December 2003 inside the mine on the condition that the workers participated in a negotiation process. For their part, the workers agreed to this proposal and dropped various legal appeals that they had lodged against the enterprise.
13. – As to the conversations which took place between the Regional Ministerial Secretary for Labour and Social Security, the SITECO and the “El Teniente” Division of CODELCO-Chile, before, during and after the incidents which occurred in December 2003, the Regional Ministerial Secretary for Labour and Social Security took a constant interest in the improvement of the living conditions of the workers working for the subcontractors and acted as an intermediary, not only with SITECO but also with the Federation of Subcontractor Workers (FETRACON).
14. 414. As to the provisional conclusions and recommendations adopted by the Committee concerning the allegations related to the PLASTYVERG conglomerate, the Government states that the following have been carried out: (1) an inspection report (No. 13.00.03.096.2004) on the PLASTYVERG conglomerate, covering the period of 10 October 2003 to 18 May 2004. This exercise was aimed at verifying the following claims: (a) the dismissal of members of the inter-enterprise trade union; (b) threats of dismissal addressed to members of the inter-enterprise trade union; (c) that the employer forced workers to sign a blank document; and (2) inspection report (No. 13.00.03.138.2003) on the PLASTYVERG conglomerate, covering the period of 1 January to 20 November 2003. This exercise was aimed at verifying the claim regarding the bringing of pressure in relation to the election of staff delegates and to get union members to withdraw from the inter-enterprise trade union.
15. 415. The Government states that these inspection reports were the basis for the charges of anti-union practices brought by the Labour Directorate before the First and Second Courts of the First Instance of San Bernardo, against the PLASTYVERG conglomerate. With regard to the case alleging conduct harmful to freedom of association, heard by the First Court of the First Instance of San Bernardo (Case No. 7.939-03), launched on 29 December 2003 against the PLASTYVERG conglomerate, the judge issued a ruling in the first instance on 15 March 2004, which, in the declarative part, states: “(1) that the enterprise Promociones Pack y Ofertas S.A., represented by Don Sergio Vergara Salinas, employed anti-union practices against the National Inter-enterprise Trade Union of Metallurgy, Communications, Energy and Allied Workers (SME), that threaten freedom of association by bringing undue pressure to bear on workers to renounce their membership of the inter-enterprise trade union; (2) that the defendant shall immediately cease the anti-union practices described in the tenth recital of this ruling; and (3) that the accused party shall pay a fine to the National Empowerment and Employment Service of 74 Monthly Tax Units (MTUs) (a monthly tax unit is the equivalent of $US52)”. The enterprise lodged an appeal against ruling No. 189/2004 before the Court of Appeal of San Miguel, which maintained the ruling in the first instance on 12 August 2004. Furthermore, the Appeals Court increased the fine from 74 to 100 monthly tax units.
16. 416. The Government adds that at the level of the Second Court of the First Instance of San Bernardo, in Case No. 2576.04, brought against the PLASTYVERG conglomerate for anti-union practices, the judge issued a ruling in the first instance on 29 October 2004, which states that “the defendant has employed practices harmful to the freedom of association” and that “the defendant shall cease anti-union and unfair activities, allowing the free and voluntary joining of and withdrawal from trade unions on the part of the workers currently employed by the enterprise, as well as on the part of those workers joining the enterprise in the future”. In the declarative part, it states: “III. The enterprises Promociones Pack y Ofertas S.A., Industria y Comercial Center Pack Ltda., Empaques Polypacks Servicios Ltda., Inmobiliaria La Vergara S.A., Plastiverg Ltda. are ordered to pay a fine of ten Monthly Tax Units”. The parties were notified of this ruling on 21 January 2005.
17. 417. In its communications of 18 March and 28 April 2005, the Government states that the Second Court of the First Instance of San Bernardo issued a ruling (Case No. 10615) against the HERPA S.A. enterprise, following the latest administrative investigation carried out by the Labour Inspectorate.
18. 418. As to the Committee’s request for information concerning the alleged detention of workers and the supposedly violent police intervention to remove the workers despite the lack of a court order, the Government states that, according to the report made by the acting officers who visited the enterprise on 17 February 2004 at 14:00: “two leaders of the Single Confederation of Workers of Colombia (CUT) waited at the 14th police station of San Bernardo for the arrival of Major Gilbert González Cárcamo who stated that the police had been informed of an illegal occupation and had attended the scene; it was concluded that the offence of illegal seizure of private land was being committed and, in the Major’s opinion, the police had acted in accordance with the established procedures for eviction and, as a result, there had been six detentions, one police officer had been injured and equipment belonging to the forces of law and order damaged. It should be noted that the Major preferred to play down the events, not lodging a complaint with the military courts concerning the assault on the police officer, rather, limiting himself to reporting the facts to the Criminal Court. Finally, the authors of the report managed to persuade the Major to free the strikers whose domiciles it was impossible to verify, it being suggested that this information be checked using labour contracts; the Major finally decided to take the names of the CUT representatives, trusting them to ensure that the detainees appeared before the relevant court”. The Government adds that it is not aware of how the case before the Criminal Court subsequently developed.

C. The Committee’s conclusions

1. 419. The Committee recalls that in this case it had requested the Government: (1) to send it a copy of the reports concerning the administrative investigations carried out and all of the judicial decisions which have been handed down in relation to the allegations concerning acts of anti-union discrimination in the PLASTYVERG conglomerate; (2) send any judicial decisions handed down in relation to the criminal proceedings referred to by the complainants or any of the acts of violence mentioned by the Government; (3) as regards the allegations concerning anti-union acts in the HERPA S.A., Viñas Tarapacá y Santa Helena enterprises, to indicate whether the latest administrative investigation in these enterprises gave rise to judicial proceedings and, if so, to inform it of their outcome and to provide information on the allegations concerning the detention of workers and violent police intervention to evict workers, despite the absence of a court order; and (4) as regards the allegations concerning the CODELCO state enterprise, to carry out a full and impartial investigation, including into the injuries allegedly sustained by workers, and to inform it of its outcome, as well as the results of the dialogue that has been resumed between the trade union leadership and the enterprise.
2. 420. As to the administrative investigations and legal procedures concerning the allegations of acts of anti-union discrimination in the PLASTYVERG conglomerate, the Committee notes that the Government states that: (1) two inspection reports were carried out in order to verify, in respect of the 10 October 2003 to 18 May 2004 period, the dismissal of trade union members, threats of dismissal aimed at members of the inter-enterprise trade union and workers being forced by the employer to sign a blank document, and in respect of the 1 January to 20 November 2003 period, pressure with regard to the election of staff delegates and to get union members to withdraw from the inter-enterprise trade union; (2) These verification reports served as a basis for the charges of anti-union practices brought by the Labour Directorate before the First and Second Courts of the First Instance of San Bernardo, against the PLASTYVERG conglomerate; (3) with regard to the case alleging conduct harmful to freedom of association, heard by the First Court of the First Instance of San Bernardo launched on 29 December 2003 against the PLASTYVERG conglomerate, the judge issued a ruling in the first instance on 15 March 2004, ordering the enterprise Promociones Pack y Ofertas S.A. of the PLASTYVERG conglomerate to immediately cease the anti-union practices – undue pressure on workers to renounce trade union membership – and ordering the enterprise to pay 74 Monthly Tax Units (MTUs) the Court of Appeal of San Miguel maintained the ruling in the First Instance and increased the fine to 100 MTU (according to the Government, one MTU is the equivalent of $US52); and (4) the Second Court of the First Instance of San Bernardo issued a ruling on 29 October 2004, concluding that the enterprises Promociones Pack y Ofertas S.A., Industria y Comercial Center Pack Ltda., Empaques Polypacks Servicios Ltda., Inmobiliaria La Vergara S.A., Plastiverg Ltda., had employed practices which violated the freedom of association, ordering them to cease anti-union and unfair activities, thus allowing the free and voluntary joining of and withdrawal from trade unions on the part of the workers of the enterprise and ordering them to pay a fine of 10 MTU; The parties were notified of this ruling on 21 January 2005. In these conditions, whilst deploring the anti-union activities uncovered by the administrative and judicial authority, the Committee takes note of the sanctions imposed against the PLASTYVERG conglomerate.
3. 421. As to the allegations related to the violent repression of the national strike of 13 August 2003, the Committee requested the Government to send any judicial decisions handed down in relation to the criminal proceedings referred to by the complainants. The Committee notes that the Government states that it has no knowledge of judicial decisions related to the acts of violence which may have taken place during the suspension of activities (national strike) of 13 August 2003, and that it must first be informed of exactly which court handed down the ruling, the name and surname of the person affected by the ruling, the date on which it was handed down, etc. In these conditions, taking into account the lack of information on the allegations referred to by the Government, the Committee shall not proceed with the examination of these allegations, unless the complainants communicate the information requested by the Government.
4. 422. As to the allegations concerning the state enterprise CODELCO, the Committee had requested the Government to carry out a complete and impartial investigation of these allegations, including the alleged injuries suffered by workers, and to keep it informed of this matter and of the result of the renewed dialogue between the trade union leadership and the enterprise. The Committee notes that the Government states that: (1) the worker Enzo Pérez, who was hit by rubber bullets during the events of 15 and 16 December 2003, received medical attention and is now in perfect physical and mental health and is working for a subcontractor at the “El Teniente” Division of CODELCO; (2) as to the alleged case of two workers working for subcontractors who sustained serious injuries during clashes with the police on 16 December 2003, following an investigation by the Regional Ministerial Secretary for Labour and Social Security of the VI Region, no workers working for subcontractors who had suffered serious injuries were found; (3) 20 workers suffered minor injuries as a result of the clashes over the illegal occupation of the “El Teniente” Division and, after having received medical attention, were discharged and sent home in December 2003; (4) on the occasion of the public disorder events which took place on 16 December 2003 as a result of the illegal occupation of the “El Teniente” Division, the Criminal Prosecutor for the VI Region initiated a case which was closed and filed in the archives after the enterprise CODELCO, “El Teniente” Division, announced that it would not be taking action against the workers and the latter came to an agreement with the enterprise, dropping the various legal appeals they had lodged against the enterprise; and (5) the Regional Ministerial Secretary for Labour and Social Security of the VI Region, has constantly taken an interest before, and after the incidents which occurred in December 2003, in the improvement of the living conditions of the workers working for the subcontractors. Taking into account this information and in particular the dropping of the legal proceedings by mutual agreement of both parties, the Committee, although deploring the acts of violence which occurred, will not proceed with the examination of these allegations.
5. 423. Finally, as to the allegations concerning anti-union acts in the enterprises HERPA and Viñas Tarapacá y Santa Helena, as well as the allegations concerning the detentions of workers and violent police intervention to evict the workers without a court order, the Committee notes that the Government states that: (1) in relation to the acts of anti-union discrimination, the Second Court of First Instance of San Bernardo ruled against the enterprises in question; (2) with regard to the supposed violent police intervention to evict the workers, the verification report showed that the police noted that the offence of illegal seizure of private land had been committed, the workers were evicted, during which time, six strikers were detained – only to be freed later on – a police officer was injured and a denunciation was made to the Criminal Court. The Government also states that it is not aware of subsequent developments regarding the abovementioned complaint.