Informe provisional - Informe núm. 362, Noviembre 2011

1. 422. The complaint is set out in a communication submitted by Trade Union Number Two “El Bosque” (Sindicato Número Dos El Bosque – SNDB) and the Federation of National Forestry Sector Transport Trade Unions (Federación Nacional de Sindicatos del Transporte Forestal – FNSTF), dated 26 August 2010. The SNDB presented new allegations in a communication dated 26 August 2011.
2. 423. The Government sent its observations in a communication dated 1 March 2011.
3. 424. 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 complainants’ allegations

1. 425. In a communication dated 26 August 2010, the SNDB and the Federation of National Forestry Sector Transport Trade Unions and Allied Workers of Chile alleged that the abovementioned trade union called a general work stoppage, starting on 24 March 2009, on the grounds of the company’s failure to pay wages for a seven-day week, in spite of the fact that article 45 of the Chilean Labour Code provides for remuneration for the seventh day of a calendar week (and public holidays), and the serious lack of security at the workplace, with lorries travelling through the territory of the indigenous Mapuche community (considered a “red zone” or zone of ethnic unrest), both by day and by night. The strike aimed to attract the attention of the forestry sector company, Forestal Mininco SA, namely the parent company which awards contracts for forestry and forestry sector transport services to subcontractors. The strike lasted for three days and ended on 27 March 2009, following the signing of an agreement with the Chilean National Labour Director, who agreed that a statement would be issued, within a period of 30 days, calling on the employers to pay wages for a seven-day week.
2. 426. Nevertheless, the complainant organizations claim that the company Servicios Forestales El Bosque SA subsequently dismissed only the workers who were trade union members, on the grounds that they had been absent from work for two consecutive days, when in fact they had been exercising their right to strike.
3. 427. The complainant organizations have submitted the case which was presented before the Labour Court in Los Angeles on 31 August 2009, and call into question the criteria used by the competent judge to rule against the 36 complainants, who were all trade union members (these workers had been dismissed; a total of 65 workers lost their jobs). They also brought complaints relating to other issues presented before the authorities, regarding anti-trade union practices and the company’s failure to comply with the provisions of the collective bargaining agreement.
4. 428. In their communication dated 26 August 2011, the complainant organizations enclosed a copy of the ruling of the Labour Court in Los Angeles, dated 22 July 2011, which fined Servicios Forestales El Bosque SA 100 tax units for unfair or anti-trade union practices (the failure to deduct trade union dues for the benefit of the complainant trade union, obstacles to collective bargaining and favouritism towards another trade union).

B. The Government’s reply

1. 429. In its communication dated 1 March 2011, the Government indicated that the complainant organizations referred to a strike (general work stoppage) held from 24 to 27 March 2009, held in protest against the company’s failure to pay wages for a seven-day week, under the provisions of article 45 of the National Labour Code, which aims to guarantee remuneration for Sundays and public holidays for workers paid exclusively on a daily basis. The work stoppage also intended to demonstrate the workers were unhappy with the prevailing lack of security at work, namely the fact that they were required to travel, by both day and night, through areas viewed to be zones of ethnic unrest involving the Mapuche indigenous community. According to the allegations, the strike aimed to raise Forestal Mininco SA’s awareness of these problems. However, while steps were being taken to end the strike (general work stoppage), Servicios Forestales El Bosque SA allegedly dismissed only the workers who were trade union members, on the grounds that they had been absent from work for two consecutive days, namely the period during which they had been exercising their right to strike.
2. 430. With regard to the other issues mentioned in the complaint (the trade union’s agreement with the National Labour Directorate, as well as the reference to the “parent company” status of Forestal Mininco SA), the Government indicates that these issues are in no way related to any anti-trade union practices, and it therefore has no comments to make on those matters. However, it wishes to explain that the reference to “parent company” status relates to provisions on subcontracted labour, as laid down in Chilean procedural legislation, namely article 183 of the Labour Code, which stipulates that, in order for a company to hold “main” enterprise (parent company) status vis-à-vis a contractor or subcontractor, a number of criteria must be met and, consequently, the existence of a mere civil relationship between the two companies does not imply the existence of any labour obligations (these circumstances are set out in the provisions of article 183 of the Labour Code and Decree No. 141, dated 2005, issued by the Labour Directorate).
3. 431. The Government states that the right to strike and collective bargaining is enshrined in article 19(16), subparagraphs (4) and (5) of the Chilean Constitution, and in article 303 et seq. of the Labour Code. These provisions stipulate that, in Chile, collective bargaining is an essential prerequisite to the right to strike, without which no strike action can take place. The parties may meet on as many occasions as are deemed necessary during a set period of time (45 or 60 days, depending on the case), in order to negotiate common labour conditions and wages. It is only if the two parties fail to achieve an agreement within the time frame laid down by law that the workers obtain the prerogative to exercise their right to strike, in which case their labour contracts are suspended (article 377 of the Labour Code) and the workers are under no obligation to be present at work during the strike period, while the employer is under no obligation to remunerate the striking workers.
4. 432. In this case, and in line with what has already been established, the situation described does not meet the criteria for strike action, as laid down in the National Labour Code, because the strike was not preceded by a process of collective bargaining. Thus, the labour contracts of these workers were not suspended as a result of the work stoppage, and their obligations towards the company remained unchanged, especially the duty to be present at work. The workers failure to fulfil that duty provided the grounds for their dismissal under article 160(3) of the Labour Code, namely the failure of an employee to turn up to work without a valid reason for two consecutive days, two Mondays in any given month or a total of three days in any one month. The behaviour of the workers, namely the work stoppage organized outside of the framework of the collective bargaining process, also constituted a violation of the principle whereby the employer had the right to organize, manage and run their own company, in line with the provisions of article 306 of the National Labour Code.
5. 433. The information above is also supported by Decree No. 0648 of the National Labour Directorate, dated 7 February 2011 which, in line with its inspection mandate under Chilean law, stipulates that “with regard to the mass dismissals during the month of March 2009, the acting inspector indicates that, according to the information obtained, the reason for the dismissals was an unlawful strike, namely one not preceded by a process of collective bargaining”.
6. 434. The Government stresses that article 19(12) of the Chilean Constitution guarantees the right to protest, in that it provides for freedom of expression, without any kind of censure. Thus, the workers’ individual or collective right to protest is not in any way limited to the collective bargaining process, as workers may legitimately demonstrate their discontent as regards economic and social matters affecting their interests by exercising this constitutional right. However, a complete, uninterrupted work stoppage, lasting two days and called without prior warning, seems an excessive response, as it upsets the fair balance between workers and employers, with regard to the framework of normal labour relations and participation, thereby also affecting other constitutional rights.
7. 435. The Government, having established that, under Chilean legislation, the dismissals in question had all been legitimate and justified, needs to determine whether only trade union members were dismissed, or whether the dismissals also affected workers who were not trade union members, in order to determine whether the workers’ employment contracts were terminated on arbitrary grounds, suggesting that these workers had been unfairly dismissed. The Government states that the ruling of the Labour Court in Los Angeles, dated 31 August 2009 (RIT-0-6-2009), as well as Decree No. 0648 of the Labour Directorate, dated 7 February 2011, which reported on the action taken by the Labour Directorate in this matter, revealed no signs of arbitrary discrimination with regard to the dismissal only of workers who were trade union members. Moreover, the dismissed workers did not file any complaints or take legal action in the labour courts alleging anti-trade union practices.
8. 436. To conclude, a reading of the complaint in question, the attached background documents and the contents of Decree No. 0648 of the National Labour Directorate, does not seem to indicate any violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), both of which Chile has ratified. The Government wishes to reiterate the information stated above, namely the fact that the workers’ claims were rejected by the court in its ruling of 31 August 2009 (RIT 0-6-2009 and 0-12-2009), and the claimants’ appeal for annulment was dismissed by the Concepción Court of Appeal (Case No. 76-2009). Furthermore, the appeal launched by the workers on 10 November 2009 for the “unification of jurisprudence”, was rejected by the Supreme Court (case No. 9301/2009). Finally, it should be added that the workers not involved in these legal proceedings signed their respective settlements.
9. 437. The Government, given the fact that state bodies are required to remain independent and respect the obligation “not to perform judicial functions, assume jurisdiction of cases pending before the courts, review the grounds for or contents of court rulings or reopen terminated proceedings”, undertakes to keep the Committee on Freedom of Association informed of the progress made on the issues still pending in this matter.

C. The Committee’s conclusions

1. 438. The Committee observes that, in the case presently under examination, the complainant organizations allege, first of all, anti-trade union practices by the company Servicios Forestales El Bosque SA. The Committee notes that these allegations have already been dealt with in a ruling by the Labour Court of Los Angeles on 22 July 2011, which issued the company with a fine for anti-trade union practices. In the substantive part of the ruling, the court indicated the following:
   • In light of these considerations, and in line with the provisions of articles 289 et seq. and 446 et seq. of the Labour Code, the court rules that:
   • I. The respondent, namely Servicios Forestales El Bosque SA, as indentified above, engaged in unfair or anti-trade union practices, which had an impact on freedom of association, by asking the workers who had not participated in collective bargaining process to choose the trade union organization to which the company would pay their legal contribution; the company also failed to withdraw the percentage of trade union members’ dues owed to Trade Union Number Two, in line with the provisions of article 346 of the Labour Code, from the wages of those workers – who performed similar tasks – and to whom the company had granted a Christmas/holiday bonus before 28 December 2010, namely when the only collective agreement in force containing these benefits was the one which had been negotiated with Trade Union Number Two.
   • II. As a result, the respondent is required to pay a fine of 100 monthly tax units to the National Training and Employment Service (Servicio Nacional de Capacitación y Empleo).
   • III. Moreover, as there is, to date, no proof that these unfair practices have ceased, once the sentence has been carried out and thereafter, the percentage stipulated in article 346 of the Labour Code must be withdrawn for the workers mentioned in part I of this ruling, and paid to Trade Union Number Two.
   • IV. Once the sentence has been carried out, the Labour Directorate shall be officially informed and sent a copy of this judgement, in compliance with the provisions of article 294bis of the Labour Code.
   • V. The accused party is required to pay the legal costs, amounting to 500,000 pesos.
2. 439. In light of the information above, the Committee will not pursue its examination of these allegations.
3. 440. The Committee also notes that the complainant organizations allege that a three-day strike held in March 2009, relating to the non-payment of wages and the lack of security experienced by transport workers travelling through a zone of ethnic unrest involving the Mapuche indigenous community, led to the dismissal of 65 trade union members. The complainant organizations state that the strike aimed to attract the attention of the company Forestal Mininco SA, namely the parent company contracting transport and forestry sector services from subcontractor employers, and that Servicios Forestales El Bosque SA was responsible for dismissing 65 workers, who were all trade union members. The complainant organizations stress that the strike ended on 27 March 2009, after an agreement was reached with the National Labour Director, who agreed to issue a statement calling on the employers to pay wages for a seven-day week (that is to say, including public holidays and Sundays, in line with the provisions of the Labour Code). Finally, the complainant organizations enclose the ruling of the Court of First Instance, relating to the dismissal of 36 workers, which indicates that “as the fact that the reason for the complainants’ failure to perform the duties stipulated in their contracts with Servicios Forestales El Bosque SA was their participation in a strike called by the trade union to which they belonged, which meant that they were unable to autonomously decide whether to work or not, was not recorded in the complaints as the grounds for their absence from work on 25 and 26 March 2009, it cannot be taken into account by the court without leading to a ruling on matters which had not been presented before the court, and which would make the court’s verdict subject to annulment.
4. 441. The Committee notes the Government’s statements, according to which: (1) under the legislation in force in Chile, collective bargaining constitutes an essential prerequisite to the right to strike, without which no strike action can take place; the collective bargaining process allows the relevant parties to meet on as many occasions as are necessary within a set time frame (45 or 60 days, depending on the case), in order to negotiate common working and wage conditions; (2) only if the parties cannot reach an agreement within the time frame established by law do the workers have the prerogative to exercise their right to strike, in which case the labour contract is considered suspended (article 377 of the Labour Code), so that the workers are under no obligation to be present at the workplace during the strike, while the employer is under no obligation to pay their wages; (3) in the specific case brought by the complainant organizations, the situation described did not meet the criteria for strike action under the provisions of the National Labour Code, as it had not been preceded by a process of collective bargaining; as a result, the labour contracts of those workers were not suspended as a consequence of the strike, and their obligations towards the company remained unchanged, especially their duty to be present at work. The workers’ failure to fulfil that duty resulted in their dismissal, in line with the provisions of article 160(3), of the Labour Code relating to the failure of a worker to perform their duties without a valid reason on two consecutive days, two Mondays in any given month or a total of three days during that period of time; (4) the description of the behaviour of the workers, namely a complete work stoppage outside of the context of collective bargaining does, on the other hand, constitute a breach of the principle whereby the employer has the right to organize, manage and run their own company, as laid down in article 306 of the National Labour Code; (5) Decree No. 0648 of the National Labour Directorate, dated 7 February 2011, in accordance with its inspection mandate under Chilean law, stipulates that: “with regard to the mass dismissals which took place in March 2009, the acting inspector indicates that, according to the information gathered, the workers were dismissed following an unlawful strike, namely a strike which took place outside the context of a collective bargaining process”; (6) the workers’ right to protest permits them to legitimately demonstrate their dissatisfaction with their economic and social circumstances and is not limited to the context of the collective bargaining process; however, a complete, uninterrupted work stoppage lasting two days and called without prior notice appears excessive, as it upsets the fair balance between workers and employers with regard to normal labour relations and participation, and also has an impact on other constitutional rights; (7) the reading of ruling RIT 0-6-2009, issued by the Los Angeles Labour Court, namely the Court of First Instance, on 31 August 2009, and Decree No. 0648, issued on 7 February 2011, which provides information regarding action taken by the Labour Directorate in this matter, reveal no indication of arbitrary treatment, namely the dismissal of only the workers who were trade union members. Moreover, the dismissed workers did not file any claims with a labour court or appeal for the protection of the courts with regard to anti-trade union practices; (8) the judicial authorities rejected the claims of the dismissed workers in a ruling issued on 31 August 2009 (RIT 0-6-2009 and 0-12-2009) and the workers’ subsequent appeal for annulment before the Court of Appeal in Concepción (Case No. 76-2009) was also dismissed, as was the workers’ appeal for “unification of jurisprudence” before the Supreme Court, on 10 November 2009 (Case No. 9301/2009); (9) the workers not involved in these court proceedings (29 of the workers, according to the information available) signed their respective settlements.
5. 442. The Committee concludes 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 the legislation in force does not allow workers to exercise their right to strike outside of the framework of a collective bargaining process. The Government stresses the fact that the abovementioned trade union members submitted no allegations of anti-union practices relating to the strike to the judicial authorities, but instead filed complaints relating to other matters.
6. 443. The Committee is of the opinion that calling a strike if necessary, to protest against the non-payment of part or all of the workers’ wages and demand better security 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 bargaining agreement. In particular, the Committee notes 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; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 531].
7. 444. In the present case, in light of the principles mentioned above, although the Government has stressed that the strike was called without prior notice, the Committee observes that, according to the Government’s reply, Chilean legislation does not, in any case, permit strike action (with or without prior notice) outside of the context of the collective bargaining process. The Committee also observes that, in the case presented before the Court of First Instance, the dismissed workers did not indicate any connection between their dismissal and the strike or work stoppage. However, as the Government has not sent the rulings of the Concepción Court of Appeal or the Supreme Court (“appeal for unification of jurisprudence”) relating to the claims presented by the members of the complainant trade union, the Committee requests the Government to send these rulings, as well as Decree No. 0648 of the National Labour Directorate, dated 7 February 2011, so that it may pronounce itself on these allegations in full knowledge of all the facts of the case.