Informe definitivo - Informe núm. 354, Junio 2009

1. 290. This case was last examined by the Committee at its June 2008 meeting and on that occasion it presented an interim report to the Governing Body [see 350th Report, paras 341–349].
2. 291. The Government sent partial observations in a communication dated 23 January 2009.
3. 292. 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. 293. In its previous examination of the case, the Committee made the following recommendations [see 350th Report, para. 349]:
   • (a) The Committee urges the Government to send its observations without delay on the alleged repeated interventions of the police in the demonstration and march held by the strikers on 28 November 2005.
   • (b) The Committee urges the Government to send, without delay, its observations on the alleged anti-trade union dismissals at the enterprise Interparking Ltda. and the alleged establishment of an employer-controlled trade union organization financed by the company, to carry out an inquiry into these matters, if this has not yet been done, and to send detailed information as to the outcome.

B. The Government’s reply

1. 294. In its communication dated 23 January 2009, the Government states in regard to recommendation (a) made by the Committee at its June 2008 meeting, that in report No. 283, the Undersecretariat of the Chilean Police (Carabineros de Chile), states that the subordinate officer in charge at the scene spoke with the group’s spokesperson, who was leading the demonstration. The latter produced a document from the metropolitan administration of Santiago “Approval No. 1275 dated 29 November 2005”, which authorized the demonstration, and also a written undertaking stating that the participants undertook to take all necessary measures to ensure the normal and peaceful conduct of the demonstration and to avoid any acts damaging public or private property or seriously disturbing the peace, as well as to assume responsibility for any damage caused and to provide any assistance that might be required by courts of law. The police withdrew from the scene as soon as they had checked the above documents and verified that the situation was calm.
2. 295. The police Communications Centre subsequently informed the same official that individuals participating in the demonstration had entered the central office of the Interparking Ltda. enterprise and had locked themselves inside office No. 312 at 520, avenida Manquehue. These workers were removed by the police by order of the Public Prosecutor on duty (penal proceedings were instituted against some of the workers who had occupied the office, but were subsequently shelved; these allegations have already been examined by the Committee).
3. 296. With regard to subparagraph (b) of the Committee’s recommendations, the enterprise Interparking Ltda. indicates that it decided to terminate the employment contracts of Mr Claudio Elgueta Valenzuela and Mr Juan Manuel Valenzuela Navarro “because they had seriously and consistently breached and failed to carry out their employment obligations”; they “had previously been issued repeated written warnings to improve their conduct, but had disregarded them”. The company points out that “when these workers were dismissed, a labour inspector came to the company and ordered their reinstatement on the grounds that they were protected by alleged trade union immunity. When the company informed the inspector that it was not aware of this, he produced a communication, signed by Mr Juan Ortiz Arcos, in which the National Inter-Enterprise Union of Metallurgy, Communications, Energy and Allied Workers (SME), states that “Mr Juan Valenzuela Navarro has been elected as a representative of our trade union in the Interparking Ltda. enterprise”. According to the company, this communication is not binding. It considers that this inter-enterprise trade union does not have the statutory power to appoint a trade union representative in their company or any other company as it sees fit. This power is conferred by law on the workers of a company who are members of an inter-enterprise trade union, provided that none of them has been elected as an officer of that union. However, this does not mean that this inter-enterprise trade union can impose a representative on the company if that representative has not been democratically elected; the representative can only be elected by workers of the company where he or she works as an employee (section 229 of the Labour Code). In line with the above, the company states that when the workers were asked whether they had held an election, they said that they had not. The company states that, despite this situation, the workers were reinstated. The reinstatement of Mr Claudio Elgueta Valenzuela was ordered by the Labour Directorate, but the Seventh Labour Court of Santiago ordered the dismissal of this worker covered by trade union immunity in a ruling handed down on 22 June 2006. His dismissal was ordered on the grounds of serious misconduct on the part of this worker, who was convicted of fraud by the Fourth Santiago Guarantees Court.
4. 297. Following a consultation of the Regional Labour Directorate in a communication of April 2008, the Directorate reported acts of harassment against trade union representatives Mr Claudio Elgueta Valenzuela and Mr Juan Manuel Valenzuela Navarro; it also stated that workers had been pressured into agreeing to a modification of their individual contracts in regard to their working hours, which were divided into shifts. An agreement on overtime was reached, a draft collective agreement mentioning the subject having been presented on the day before these incidents took place by workers who were members of the trade union. As regards these accusations, the responsible labour inspectorate noted the acts at issue in inspection report No. 13.00.2005.331, dated 16 November 2005, and a complaint of anti-union practices was accordingly filed with the court under Case No. 17442006. On 30 September 2006, the Court upheld the complaint and imposed a fine of 100 monthly tax units on the company. Notwithstanding the above, there is no mention of records of anti-union dismissals in the Regional Directorate report.
5. 298. The company states that the allegations concerning the establishment of an employer-controlled trade union organization financed by the company are completely untrue, without providing any further information on the matter. There are no judicial or other records substantiating this claim.

C. The Committee’s conclusions

1. 299. The Committee recalls that when it examined this case in June 2008 it requested the Government: (a) to send its observations without delay on the alleged repeated interventions of the police in the demonstration and march held by the strikers on 28 November 2005; and (b) to send, without delay, its observations on the alleged anti-trade union dismissals at the enterprise Interparking Ltda. and the alleged establishment of an employer-controlled trade union organization financed by the company, to carry out an inquiry into these matters, if this has not yet been done, and to send detailed information as to the outcome.
2. 300. With regard to the alleged repeated interventions of the police in the demonstration and march held by the strikers on 28 November 2005, the Committee notes that the Government declares that the Undersecretariat of the Chilean police (Carabineros de Chile) reported that: (1) the subordinate officer in charge at the scene spoke with the group’s spokesperson, who was leading the demonstration. The latter produced a document from the metropolitan administration of Santiago authorizing the demonstration, and also a written undertaking stating that the participants undertook to take all necessary measures to ensure the normal and peaceful conduct of the demonstration and to avoid any acts damaging public or private property or seriously disturbing the peace, as well as to assume responsibility for any damage caused and to provide any assistance that might be required by courts of law; and (2) the police withdrew from the scene as soon as they had checked the above documents and verified that the situation was calm. In the light of this information, the Committee will not pursue its examination of these allegations.
3. 301. With regard to the anti-union dismissals, the Committee notes that the Government indicates that the company in question reports that: (1) the enterprise decided to terminate the employment contracts of Mr Claudio Elgueta Valenzuela and Mr Juan Manuel Valenzuela Navarro because they had seriously and consistently breached and failed to carry out their employment obligations, and had previously been issued repeated written warnings to improve their conduct, but had disregarded them; (2) when these workers were dismissed, a labour inspector came to the company and ordered their reinstatement, on the grounds that they were protected by alleged trade union immunity; (3) when the company informed the inspector that it was not aware of this, he produced a communication in which the National Inter-Enterprise Union of Metallurgy, Communications, Energy and Allied Workers (SME) states that “Mr Juan Valenzuela Navarro has been elected as a representative of our trade union in the Interparking Ltda. enterprise”; (4) given that, according to the company, this communication is not binding, it considers that this inter-enterprise trade union does not have the statutory power to appoint a trade union representative in their company or any other company as it sees fit; (5) when the workers were asked whether they had held an election, they said that they had not; (6) despite this situation, the workers were reinstated; and (7) the reinstatement of Mr Claudio Elgueta Valenzuela was ordered by the Labour Directorate, but the Seventh Labour Court of Santiago ordered the dismissal of this worker covered by trade union immunity in a ruling handed down on 22 June 2006. His dismissal was ordered on the grounds of serious misconduct on the part of this worker, who was convicted of fraud by the Fourth Santiago Guarantees Court. The Committee also notes that the Government reports that the Regional Labour Directorate reported acts of harassment (a modification of working hours after a draft collective agreement was presented) against trade union representatives Mr Claudio Elgueta Valenzuela and Mr Juan Manuel Valenzuela Navarro, that a complaint was filed with the court for anti-union practices and a fine was imposed on the company.
4. 302. With regard to the dismissal of Mr Claudio Elgueta Valenzuela after he was convicted of fraud, the Committee recalls that Convention No. 87 does not protect against abuses involving criminal activity while exercising trade union rights. However, the Committee notes with interest the reinstatement of trade union representative Mr Juan Manuel Valenzuela Navarro and requests that the Government ensure that he was paid his wages due and benefits not received during the period following his dismissal.
5. 303. With regard to the alleged establishment of an employer-controlled trade union financed by the company, the Committee notes that the Government indicates that the company reports that these allegations are completely untrue, and that there are no judicial or other records substantiating this claim. In these circumstances, the Committee will not pursue its examination of these allegations, unless the complainant organization provides further information on the matter.