Rapport intérimaire - Rapport No. 197, Novembre 1979

1. 362. The Committee last examined this case at its May 1979 session, when it submitted an interim report to the Governing Body.
2. 363. Since then, the international Confederation of Free Trade Unions (ICFTU) has addressed, on 31 August 1979, a communication to the ILO on the new trade union legislation promulgated by the Chilean Government. Furthermore, the Professional Trade Union of Seafarers of Chile and the Port Workers' Trade Union have presented a complaint by telegram on 28 September 1979 and the ICFTU sent new allegations in a letter of 9 October 1979. For its part the Government provided its observations in communications dated 15 and 31 October 1979.
3. 364. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Adoption of new trade union legislation

1. 365. In its report submitted to the Governing Body in May 1975 the Fact-Finding and Conciliation Commission on Freedom of Association, which had been entrusted with the examination of the case of Chile, had recommended to the Government the adoption without delay of new trade union legislation which, in order to be in conformity with the principles of freedom of association enshrined in the ILO Constitution and in order to enable the ratification, as the Government stated was envisaged, of the freedom of association Conventions, which contain very clear provisions on this question, should recognise the following principles:
2. (1) The right of workers, without any distinction whatsoever, including public servants, to set up organisations of their own choice. In virtue of this principle, the following must be avoided: all restrictions which limit the free choice of the type and number of organisations which the workers desire to establish in the case of both primary trade unions and of federations and Confederations which group together organisations of different professions, activities or industries.
3. (2) The right of workers to set up organisations without prior authorisation and without any participation of the authorities in the constituent procedure.
4. (3) The right of these organisations to hold meetings free of control by the authorities, for the purpose of discussing freely all questions relating to internal administration and the defence of the interests of their members.
5. (4) The right of organisations to elect freely their representatives, without any limitation of the number of terms of office during which they can exercise their trade union functions, and to decide without any outside interference all questions relating to the removal from office of trade union officials by the members of the union concerned.
6. (5) The right of organisations to organise their administration without any interference by the authorities.
7. (6) The right of organisations to benefit from all legal safeguards for their defence, in the event of the question of their suspension or dissolution coming before the courts.
8. 366. In the course of the various stages of the Government's work on the elaboration of a draft law on trade union organisations, the Committee has strongly urged the Government to promulgate without delay legislation which will guarantee the free exercise of trade union rights. On all these occasions, it has repeatedly recalled the principles set forth by the Fact-Finding and Conciliation Commission on Freedom of Association in the perspective of the adoption of this legislation.
9. 367. At its session of May 1979, the Committee took note of the Government's statements regarding the promulgation of new trade union legislation, which was expected for 30 June 1979 at the latest. In addition, the Committee examined the guidelines of the new legislation, the text of which had been communicated by the Government. It noted with interest that, in the form in which they had bean communicated to the Committee, they appeared to have largely incorporated the principles endorsed by the Fact-Finding and Conciliation Commission on Freedom of Association in its recommendations concerning the adoption of new trade union legislation. Nevertheless, the Committee reaffirmed that it could not pronounce itself on the question of the conformity or otherwise of the new legislation with the principles of freedom of association until it had all the necessary information at its disposal, and in particular, the full text of the new provisions. In this respect, it expressed its deep regret at the fact that the Government had not been able to supply the text of the draft law before it was finally promulgated. In these circumstances, the Committee could only urge the Government to take the necessary measures to ensure that the new legislation to be adopted by 30 June 1979 should contain provisions conforming with the recommendations of the Fact-Finding and Conciliation Commission and that the text should be speedily forwarded to the Committee so that it could make a pronouncement on its conformity or otherwise with the principles of freedom of association. Furthermore, the Committee considered it useful to reiterate the need for a full and speedy application of legislation conforming to the above-mentioned recommendations with a view to bringing to an end all the restrictions which have been in force in trade union matters for the last six years.
10. 368. The Government promulgated on 29 June 1979 a number of legislative decrees concerning trade unions and collective bargaining, viz. Legislative Decree No. 2755 which lays down Constitutional rules in the social field, Legislative Decrees Nos. 2756 and 2757 which lay down rules on trade union organisation and on professional associations respectively and Legislative Decree No. 2758 on collective bargaining.
11. 369. In a communication dated 31 August 1979, the ICFTU declares that Legislative Decrees Nos. 2756 and 2758 constitute grave violations of freedom of association. As far as Legislative Decree No. 27562 is concerned, the ICFTU mentions more specifically the following provisions: articles 10 and 11 (minimum number of workers required to set up a trade union); article 14 (supervision of the legality of the Constitutions by the Labour Inspectorate); article 18 (majority necessary for the approval of the Constitutions); articles 20, 21, 23, 24, 26, 27, 33 and 35 (rules governing elections); article 29 (termination of office of trade union leaders); Title VI (financial management of trade unions); article 55 (dissolution of trade unions); articles 57 to 68 (federations and Confederations).
12. 370. In its communication of 15 October 1979, the Government: firstly gives a general picture of the substantive aspects of the legislation on trade union organisations, then it specifically replies to the ICFTU's allegations.
13. 371. The Government states that the series of standards, adopted under the "Social Plan" are aimed at enabling the free exercise of trade union rights by yet a greater number of workers. Trade union organisations now may be established and acquire legal personality through an "automatic" procedure which does not require the public authorities' authorisation. The Government notes that this is the first time that this procedure has been applied in Chile. It points out that shortly after the publication of the Legislative Decree many trade unions were established (a list of them is provided) as well as a saltpetre workers' Confederation. In this regard, in its communication of 31 October 1979, it states that between 3 July and 30 September 1979, 25 new trade unions were formed covering 3,028 members.
14. 372. As a consequence of the new Legislative Decree, the Government must accord the same legal treatment to all workers. It notes that the previous Labour code discriminated between intellectual and manual workers; in fact the latter were obliged to affiliate in one sole trade union. The Government also points out that the Legislative Decree applies to all workers in the private sector and in state-owned undertakings and that it allows for a whole range of possible trade union structures (unions in undertakings, unions covering several undertakings or self-employed workers' unions).
15. 373. Under the provisions of the new Legislative Decree, continues the Government, organisations should enjoy internal democracy and union autonomy. The number of trade union leaders who should benefit from "union protection" has been increased and they are allowed time off to carry out their activities during working hours. The Government states that this did not exist in the previous Code. In order to increase trade union autonomy, important changes have been introduced. The Government states that organisations are no longer obliged to deposit their funds in the State Bank and unions of less than 250 members no longer need necessarily present an annual financial statement.
16. 374. The Government also points out that fines of up to 9,600 US dollars are provided for in cases where acts of anti-union discrimination are proven. To this end, the concept of unfair practices has been introduced. Moreover, the Government states that the system of trade union dissolution has undergone considerable amendment since the competence previously invested in the executive has been transferred to judicial tribunals.
17. 375. The Government considers that the new provisions evidence notable progress, both as regards the previous Labour Code of 1931 and in light of the international standards and principles on the subject. Although the previous legislation may have openly violated the letter and spirit of Convention No. 87, Chile was never accused at that time of infringements of freedom of association. The Government draws attention to the fact that now this is no longer the case as it has corrected all the imperfections which previously existed.
18. 376. According to the Government it is not a question of an absolute analysis of the conformity of the "Social Plan" with the Conventions which it has not ratified. It is only advisable, so it states, to evaluate the new legislation by comparing it with recommendations of the Fact-Finding and Conciliation Commission.
19. 377. The Committee has taken cognizance of Legislative Decree No. 2756 it notes with satisfaction that the new legislation abrogates Legislative Decree No. 198 which had been adopted in December 1973, shortly after the change of regime, and which imposed serious restrictions on trade union activities. While welcoming this abrogation, which had been urged by the Fact-Finding and Conciliation Commission and by the Committee itself, the Committee must nevertheless make certain comments on some of the provisions of the new legislation, in the light of the principles of freedom of association.
20. 378. Certain allegations have been formulated on the subject of Title II of Legislative Decree No. 2756 concerning the setting up of trade unions. The Committee notes that articles 10 and 11 require a minimum number of members for the setting up of a trade union (25 workers representing at least 10 per cent of the total staff for a trade union in an undertaking; 25 workers representing 40 per cent of the staff for a works union; nevertheless, whatever their percentage, 250 workers can set up a trade union; similarly, 8 workers representing 50 per cent of the staff in the case of undertakings employing less than 25 workers or 75 workers for a multi-company union) in this regard, the Government states that these provisions correspond to Chilean tradition and to the general opinion of Chilean workers. According to the Government, the establishment of trade unions in small undertakings is not prohibited since the workers concerned can, in particular, set up organisations covering several undertakings. Moreover, it gives examples of unions which have been set up within small workplaces since the promulgation of the legislation.
21. 379. The Committee observes that the Labour Code which was previously in force in Chile required, for the creation of an industrial trade union, the consent of 55 per cent of the workers of the undertaking concerned and, for a professional trade union, a minimum of 25 members. The new legislation thus appears to contain more flexible provisions on this point. Nevertheless, the Committee notes that, in the case of a large undertaking, the minimum number of workers required for setting up a trade union, can be very high since it must represent 10 per cent of the total staff and can thus be as high as 250 wage-earners. In the present case, the Committee is not in a position to determine whether the application of the provisions in question will give rise to problems in practice. It wishes, however, to recall in respect of large undertakings the view which it has already expressed, according to which the setting up of a trade union can be hindered considerably or even be made impossible when the law specifies for a trade union a minimum number of members which is patently too high.
22. 380. Under article 13, the trade union is endowed with legal personality from the moment its Constitution is deposited with the authorities. Nevertheless, under the terms of article 14, the labour inspection has 90 days to file objections to the setting up of a trade union in the case where the formalities prescribed by law have not been performed or the Constitution does not conform with the relevant legislation. The trade union then has 60 days in which to take the necessary steps. In the contrary event, the legal personality is considered as cancelled by mere operation of the law. In this regard the Government states that therefore for the first time in Chile trade unions can be set up automatically.
23. 381. The Committee has always considered that the formalities prescribed by national legislation for the setting up of trade unions are admissible provided, of course, that the provisions in question do not run counter to the principles of freedom of association and that the approval of the Constitution, in particular, is not left to the discretionary powers of the administrative authorities. In the present instance, it would be desirable in particular that the decision of the labour inspectorate, and any cancellation of the legal personality which might result therefore, should be capable of being challenged in court so that the latter can re-examine the merits of the case.
24. 382. Article 18 of the Legislative Decree (Title III relating to rules) specifies that rules must be approved at the constituent meeting of a trade union by an absolute majority of its members voting by secret and nominative ballot. The Government considers that this is not a restriction on the organisations' freedom in this connection, the Committee wishes to refer to a number of earlier cases in which it has been able to observe that in a number of countries, both the law and the practice require the majority of the members of a trade union - at least on the first ballot - to decide on certain questions which affect the very existence of the trade union (approval and amendment of the Constitution, dissolution, etc.). The Committee has considered that, in such cases, the legal provisions on the necessary majorities do not constitute an intervention contrary to freedom of association, provided that such regulation is not calculated to hinder seriously the running of a trade union, by rendering the adoption of decisions virtually impossible in the present case, it is not clear whether the members of a trade union, including a trade union which groups members working in several different places in the same country, must vote in person at one and the same voting assembly.
25. 383. Title IV relating to boards of management lays down a certain number of rules concerning the number of officers (article 20), the requirements for eligibility (article 21) and electoral procedures (articles 23 to 30). According to the Government, the provisions of this Title have modernised the standards of the previous Code without creating restrictions. The Committee must recall on this point that legislation which makes detailed provision for election procedures within a trade union or for the composition of its executive bodies is not consistent with the right of organisations to freely elect their representatives.
26. 384. As far as the requirements for eligibility specified by the Legislative Decree are concerned, the Committee has noted with interest that certain provisions adopted in the course of the organisation of the October 1978 elections, and which it had considered incompatible with the principles of freedom of association, have not been taken up in the new legislation (for example, the prohibition of re-election of officers and the requirements that officers should undertake not to engage in political activities). Nevertheless, the Legislative Decree maintains as a requirement for eligibility the absence of convictions or prosecutions for crimes or mere misdemeanours as well as, in the case of a works union, the requirement of two years' service with the same firm. As for ineligibility because of criminal convictions or prosecutions, the Committee is of the opinion that such a provision can run counter to the principles of freedom of association. In reality, the fact that a person has been convicted - and a fortiori in the case of a mere prosecution - for an activity which, by its very nature, is not calculated to represent a real threat to the proper discharge of trade union functions, should not constitute grounds for disqualification from nomination as an officer of a union. A mere prosecution which results in discharge of the case should not be taken into account in this connection. Similarly, the seniority requirement in the undertaking negates the right of free election; the dismissal of a trade union leader could, in such a case, make him lose also his position as a trade union leader, and thus deprive the organisation of its freedom of action and affect its right to elect freely its representatives and even favour acts of interference on the part of the employer. Furthermore, it appears from article 23 that the nomination of candidates is not contemplated, contrary to a practice which is very common among trade union organisations.
27. 385. In Title VI, relating to trade union funds, article 50 specifies that the Directorate of Labour, which has in the matter the widest right of inspection and which can act either on its own initiative or at the request of the parties, has access to the account books of the trade union. Trade union executives must submit in due time all economic, financial, accounting or patrimonial data that might be requested by the Labour Directorate if, within 30 days, the trade union leaders have not complied with these requests, the leaders are deposed from office by the mere operation of the law and may not be re-elected for a period of three years. The Government states generally regarding Title VI of the Legislative Decree that Chilean law has never granted such wide freedoms to trade unions.
28. 386. The Committee has repeatedly stressed the importance which it attaches to the right of trade unions to organise themselves, their activities and the administration of their affairs. As the Committee of Experts on the Application of Conventions and Recommendations has underlined, in its General Survey on Freedom of Association and Collective Bargaining published in 1973,3 the supervision exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reporting requirements. Inspection and furnishing of information wherever required by the authorities at their discretion entail a danger of interference in the internal administration of trade unions. Investigations should be limited to exceptional cases when they are justified by special circumstances, such as apparent irregularities revealed by the presentation of annual financial statements or complaints by members of the trade union. Furthermore, the general principle concerning the judicial control of internal acts of an occupational organisation in order to ensure an impartial and objective procedure is particularly relevant in regard to the administration of trade union property and finances. In the present case, the Committee draws these principles to the attention of the Government with particular emphasis because of the grave consequences which could result for a trade union if it does not apply the Legislative Decree on these questions, to wit the removal of the trade union leaders concerned from office and their ineligibility for a period of three years.
29. 387. In the same context of the right of trade unions to organise their administration and their activities, the Committee pointed out that article 1(b) of Legislative Decree No. 2755, amending Constitutional Act No. 3, prohibits the participation of trade union organisations in partisan political activities. The Committee wishes to recall in this respect the comments made by the Fact-Finding and Conciliation Commission on Freedom of Association in its report. The Commission considered that a general prohibition of political activities undertaken by the trade unions to promote their specific objectives would be contrary to the principle of freedom of association. The Commission went on to say that however, if the unions, in accordance with the wishes of their members, undertake activities of this kind, it is important that such activities should not be of such a nature as to compromise the continuity of the trade union movement or its social and economic functions, irrespective of political changes in the country. Governments, for their part, should not attempt to transform the trade union movement into an instrument for pursuing political aims, nor should they attempt to interfere with the normal functions of trade unions because of their freely established relationship with a political party.
30. 388. Certain allegations have been formulated concerning Title VII of Legislative Decree No. 2756 (relating to the dissolution of trade unions) which specifies that such dissolution shall take place by judicial order (article 54) and that application for it can be made by the Labour Directorate, by a trade union member, by an employer or by any other interested person (article 55). The Committee considers that these provisions do not conflict with the principle according to which trade unions must not be liable to dissolution by administrative order. It notes that, on the contrary, these provisions evidence progress with respect to the Labour Code of 1931 which made provision for the dissolution of trade unions by decree.
31. 389. Title VIII of Legislative Decree concerning federations and Confederations aims, according to the Government, at defining higher-level organisations. However, it contains certain provisions which, in the opinion of the Committee, are incompatible with the principles of freedom of association. This is the case, in particular, of articles 57 and 58 which define respectively a federation as an association of more than 3 but less than 20 trade unions and a Confederation as an association of not less than 20 trade unions or federations, of article 59 which forbids federations and Confederations from participating in collective bargaining and from signing a collective agreement and of article 63 according to which the affiliation of a trade union to a federation or Confederation must be renewed by a general meeting every two years.
32. 390. The Committee has also observed that most of the provisions applicable to trade unions in matters of Constitution, articles of association, elections and union assets, are likewise applicable to federations and Confederations. The comments made above by the Committee on these matters are similarly applicable to these higher-level organisations which must also have the right to draft their articles of association, to elect freely their representatives, to organise their administration and their activities and to formulate their programme of action.
33. 391. According to article 69 of the Legislative Decree (Title I% concerning the supervision of trade union organisations), all trade unions, federations and Confederations are subject to the control of the Directorate of Labour and must supply to the latter all the information which it requests. The Committee considers that this provision gives the administrative authorities the right to investigate at their discretion the internal affairs of a trade union and accordingly comports a risk of interference in the administration of the organisation concerned.
34. 392. As for the scope of application of the Legislative Decree, the Committee observed that its provisions are not applicable to officials employed by state bodies - centralised or decentralised (article 74). The Committee wishes to recall in this respect that public officials, like workers of the private sector, should be able to set up organisations to promote and defend the occupational interests of their members. The Committee notes that the Legislative Decree is applicable to the workers of the agricultural sector who were formerly covered by a special law of 1967, and to copper workers who were previously covered by a special regulation.
35. 393. Finally, the Committee pointed out, with regard to the transitional provisions of the Legislative Decree, that the trade union officers elected in October 1978 pursuant to the provisions of Legislative Decree No. 2376 of 1978 will remain in office for a period of four years (transitional article No. 4). It appears, however, that the workers will have the right to censure these officers by decision taken by an absolute majority of the members of the trade union concerned, at the request of at least 20 per cent of the members. While noting this last provision, the Committee wishes to recall that the Legislative Decree which governed the elections of October 1978 contained certain provisions which are incompatible with the principles of freedom of association (these provisions concerned, in particular, the ineligibility of trade unionists holding office at the time of the elections as well as the requirement of non-participation in political activities).

B. Collective bargaining and right to strike

1. 394. The Fact-Finding and Conciliation Commission on freedom of Association and also, on several occasions, the Committee and the Governing Body, have expressed the hope that it will soon be possible to resume the practice of collective bargaining. The Government had announced in its reports of January and May 1979 that a new law on collective bargaining would be promulgated before 30 June 1979. At its sessions of February-March and May 1979, the Governing Body, while taking note of this declaration of the Government, had, on the recommendation of the Committee, drawn attention to certain principles, particularly with respect to the level of bargaining and the recognition of the right to strike.
2. 395. After the adoption by the Government of Legislative Decree No. 2758 on collective bargaining, the ICFTU, in its communication of 31 August 1979, claimed that certain provisions of this Legislative Decree were incompatible with the principles of freedom of association. It referred more specifically to article 3 (prohibition of collective bargaining at undertakings or institutions which are financed by more than 50 per cent by the State); to article 4 (prohibition of this type of bargaining with workers of more than one undertaking); to article 7 (prohibition of this type of bargaining for federations and Confederations) and to article 62 (limitation of the duration of strikes).
3. 396. In its communication of 15 October 1979, the Government describes the collective bargaining system which was in force previously. It states that collective bargaining was viewed as a procedure for the obtaining of levels of remuneration as required and the redistribution of wealth without taking into consideration the workers' contributions to the undertakings or productivity. The procedure did not allow negotiations to be concluded at the level of the parties and lead to the intervention of the State. Because of this, disputes became political and required a political type of solution. This system encouraged the politisation of trade union leaders since they had to keep in contact with government officials so as to influence the solution of disputes. Moreover, the benefits won by workers were illusory. In fact, the levels of remuneration which surpassed the possibilities linked to productivity were consequently reduced by inflation.
4. 397. According to the Government, one of the most worrying questions as far as collective bargaining is concerned is the cost to the society of strikes. These factors were taken into consideration in the new legislation so as to avoid their effects. Furthermore, by allowing negotiation to take place at the level of the undertaking, disputes are localised and the seriousness of the problem and the temptation on the part of the State to interfere are reduced. Moreover, the free fixing of prices, the opening to international trade and economic policies in general have put undertakings in a situation which does not allow them to bear a dispute for a long time. Thus they cannot allow themselves to offer wages which are too low, for fear of strikes, nor too high, so as to maintain competitiveness. The balance of power between the parties, in view of one another, enables a solution to be found without the necessity of state intervention.
5. 398. The Government states that the law recognises the right to collective bargaining on all questions concerning wages and working conditions. Under the procedure, wages must effectively correspond to the specific contribution of each group of workers to the over-all output. According to the Government, this is the basic factor in the pursuance of economic progress and the correction of social injustices. Thus, continues the Government, it is advisable to place collective bargaining at the undertaking level for it is there that the contribution of each group of workers to the increase in productivity can really be measured.
6. 399. The Government goes on to describe the bargaining procedure which begins with the submission of a "draft collective contract" to the employer and by the election of a "bargaining Committee" by the means of a vote of the workers concerned. The parties bargain directly and have the right, if they so wish, to appoint a mediator. If no agreement can be reached, they can freely and voluntarily submit to arbitration. On the date of expiry of a previous collective contract, the workers may, if they have not come to an agreement with the employer, call a strike subject to the fulfilment of certain procedural rules. On the other hand, the employer may declare a lock-out, again subject to certain conditions.
7. 400. The Government states that the law provides for the maintenance of the workers' previous wage, whatever is the situation of the undertaking, taking into account a full readjustment in view of the increase in the cost of living.
8. 401. According to the Government, it is important that collective bargaining takes place between the parties without interference by the State. This can only occur where both parties have the real possibility of choice. The Government states that the "Social Plan" only respects this principle. It goes on to state that compulsory arbitration was not retained as a general method of arriving at collective contracts. In fact, it is of the opinion that this procedure results in the parties standing by their positions and thus makes the conclusion of direct agreements more difficult.
9. 402. However, the Government continues, in conformity with international principles, the legislation provides for the limiting or restriction of strikes in essential services or in undertakings which belong to key sectors in the society of the country. Nevertheless, the right to collective bargaining in these undertakings is not interfered with. Only as a last resort are disputes submitted to an arbitrator whose decision can be appealed before an arbitration court.
10. 403. In addition, the Government states that for the first time the legislation refers to the notion of "unfair practices". Therefore the refusal of an employer to bargain or to supply information in support of its contentions, physical or moral pressure against workers, the undue use of lock-outs or generally acts of bad faith which prevent the normal running of the procedure, amongst other things, are considered as interferences with the freedom to bargain collectively.
11. 404. As regards the practical application of the new Legislative Decree, the Government states that 394 draft collective contracts covering a total of 29,220 persons have already been submitted. It supplies a list of 158 undertakings in which contracts have been concluded and gives a provisional list of 299 undertakings where draft contracts have been prepared. Moreover, the Government states that in more than 97 per cent of the cases, collective bargaining has resulted in "real" increases in wages in the order of 6 to 12 per cent. Strikes have occurred in 3 per cent of cases but have only been effective in 1 per cent of the undertakings which were bargaining. In other cases, differences were overcome before the calling for action. At the moment, the Government states, workers in two undertakings are involved in a strike.
12. 405. The Committee notes with interest the promulgation of Legislative Decree No. 2758 on collective bargaining. It considers that the re-establishment of collective bargaining can constitute an important factor in the improvement of labour-management relations in the country. However, the Committee considers that some of the provisions of this Legislative Decree call for comments on its part.
13. 406. Firstly, the Committee points out that collective bargaining will not be allowed in state administrations, in companies or public and private undertakings or institutions whose budgets have been financed in the course of the past two years by the State to an extent exceeding 50 per cent, either directly, or through duties or taxes (article 3), or in certain public utility services managed by private companies. The Government states in this regard that, in conformity with Chilean legislation, there is no collective bargaining for public institutions. In the case of those institutions covered by article 3, the conditions are not listed again according to the Government so that the employer can negotiate freely. The Committee feels that it must recall in this respect the terms of the Labour Relations (Public Service) Convention (No. 151), adopted by the International Labour Conference in 1978, article 7 of which specifies that - "Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters".
14. 407. It appears from articles 4 and 7 of the Legislative Decree that collective bargaining will operate exclusively at the level of the undertaking and that federations and Confederations may not engage in collective bargaining, even when it relates to the workers of one and the same undertaking. It also appears from the terms of the provisions concerning the procedure for calling a strike (in particular, article 52) that a strike may only to decided by the absolute majority of the workers concerned in the bargaining. Accordingly, it would seem illegal for a federation or Confederation to start a strike.
15. 408. Regarding the participation of higher degree organisations in collective bargaining, the Government refers to its May 1979 statements which the Committee examined at its previous session. The Government states that judicial proceedings are not effective in locating and punishing at first instance monopolistic practices. It continues that such practices produce nasty effects upon non-unionised workers, small trade unions, the unemployed, consumers and upon the country's economy in general. The Government observes that unions of little experience or whose power to exert pressure is insufficient have recognised the help that federations can give in collective bargaining. On the other hand, other unions have preferred to bargain through their own methods.
16. 409. The Committee wishes to recall in this regard the comments made by the Committee of Experts on the Application of Conventions and Recommendations in its general survey of 1973.1 As for denying federations and Confederations the right to strike and the right to collective bargaining, the Committee of Experts considered that restrictions of this type could give rise to serious difficulties in the development of industrial relations, particularly in the case of small unions which, on account of their limited strength and untrained leadership, may not be able by themselves to further and defend the interests of their members in an effective manner. Regarding the Government's statements on the evil effects of monopolistic practices, the Committee wishes to point out that where clauses in certain collective agreements appear to be in opposition to the considerations of the general interest, a procedure could be envisaged by which the attention of the parties is drawn to those considerations so that they can undertake a new examination, it being understood that they are to remain free in the making of their final decision.
17. 410. Article 6 of the Legislative Decree forbids strikes in undertakings which operate public utility services or where the stoppage of their activity would cause serious prejudice to the health, the supplies for the population, the economy of the country or national security. According to the Legislative Decree, these latter undertakings must represent a significant part of the branch of activity concerned in the country or the stoppage of their activity must make it wholly impossible for a section of the population to receive the services concerned. A list of these undertakings is drawn up every year by a joint decision of the Ministers of Labour, National Defence and Economic Affairs. A compulsory arbitration procedure applies to all the undertakings in question in the event of failure to reach direct agreement. The list drawn up this year, according to the information provided by the Government, includes 32 undertakings (22 public and 10 private) belonging to the following sectors: certain copper mines, telephones, explosives, telecommunications, public transport, rail transport, air transport, maritime transport, water, electricity, gas, petrol, ports. In this regard the Government states that the special geography of the Chilean territory requires that there should be no paralysation of transport and communication.
18. 411. In a general manner, the Committee admitted that the right to strike can be made subject to restrictions, and even prohibition in the government service or essential services, if these limitations are accompanied by corresponding guarantees, because a strike could cause severe damage to the national community. It also considered that strikes cannot apparently but result in such damage if they take place in undertakings that constitute a key sector for the life of the country. The Committee noted that some of the undertakings which appear at present in the list drawn up by the Government seem to correspond to those which are normally considered as essential in the strict sense of the word. However, the Committee must recall that it has pointed out on several occasions, and particularly in cases concerning ports, banks, oil companies and transport, that the principle concerning the prohibition of strikes in essential services may well become meaningless if a strike in one or more undertakings which do not furnish an essential service in the strict sense of the word, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population, is declared illegal. In the present case, it appears that the listing, made each year by the Government, of the undertakings in which the right to strike is denied could lead to the drawing up of an unduly extensive list by reference to the criteria mentioned above.
19. 412. Article 12 of Legislative Decree No. 2578 enumerates certain matters which may not be the object of collective bargaining. The Committee considers that some of these matters (particularly those which would imply an obligation on the employer to pay salaries to strikers for the strike days, and those which refer to the creation of funds which grant benefits entirely or partly financed by the employer) should not be systematically considered as being outside the scope of collective bargaining.
20. 413. As indicated above, the decision to strike must be taken by the absolute majority of the workers concerned (article 52). The same is also true for the prolonging of a strike where a vote is called for by the bargaining Committee representing the workers or else by 10 per cent of the workers concerned (article 54).
21. 414. In this matter, the Committee must point out that, according to the terms of the voting procedure thus laid down, it may be difficult to obtain an absolute majority, particularly in the case of a trade union having a large number of members. This provision therefore involves the risk of substantial restrictions upon the right to strike.
22. 415. The Committee also points out that, according to article 58, the employer can recruit such workers as he considers necessary and that under article 62, the workers who maintain their decision not to return to work after 60 days of strike are considered as having voluntarily resigned. The Government states on this point that the average length of strikes in Chile was 21 days, and that it is very important for employers to avoid prolonged work stoppages.
23. 416. In this respect, the Committee wishes to recall the principle already stated in earlier cases' according to which the use of groups of persons to fill the jobs abandoned as a result of a labour dispute may, if the strike is otherwise legal, only be justified if there is a need to assure the functioning of services or industries whose breakdown would create a situation of acute crisis in the present case, the Committee considers that the combined application of the two above-mentioned provisions involves the risk of weakening considerably the position of the workers and of their organisations in the defence of their occupational and economic interests. Moreover, the Committee wishes to point out that the provision under article 62 involves a substantial restriction of the right to strike since it in fact limits the duration of strikes to a maximum of 60 days.
24. 417. In accordance with the provisions of article 65 of the Legislative Decree, in the event of a strike or a lock-out which, because of its nature, timing or length, causes serious prejudice to health, supplies for the population, the national economy on national security, the President of the Republic may by decree order the resumption of work for a period of 90 days. The decree in question shall appoint a member of the corps of arbitration to act as mediator. In addition, article 86 of the Legislative Decree which amends article 38 of Law No. 12927 on the security of the state, specifies that in the case of an illegal strike which causes serious prejudice to any industry that is vital to the national economy or occurs in any transport undertaking, in any farm on establishment which produce or process goods or articles essential to national defence or to supplies for the population or which provide public services or public utility services, the President of the Republic may order the resumption of work with the help of the civilian or military authorities. In these cases, the workers must return to work under conditions identical to those prevailing at the date of the illegal stoppage of work.
25. 418. In this respect, the Committee must stress in general terms the fact that measures of mobilisation or requisition of workers during a labour dispute lend themselves to abuse, and also the undesirability of recourse to such measures, except where they are taken in order to ensure the maintaining of essential services in circumstances of the utmost gravity.
26. 419. Lastly, the Committee notes that transitional article 1 provides for a staggering of times for returning to collective bargaining and the entry into force of the collective contracts which run, depending on the undertaking, from 16 August 1979 to 1 June 1980. The Committee would hope that the Government will continue to supply information on the practical application of the Legislative Decree as regards collective bargaining, particularly on the number of contracts concluded, on the number of workers covered, and on the undertakings involved.

C. Measures affecting trade union leaders and organisations

1. 420. At its May 1979 session, the Committee examined certain allegations made by the Latin American Central of Workers regarding the dismissal on 8 March 1979 of Daniel Lillo, President of the National Association of Customs Employees of Valparaiso.
2. 421. The Committee had noted that this measure had been taken by the Regional Governor (Intendente) of the Valparaiso region in accordance with Legislative Decree No. 349 of 1974. This Legislative Decree empowers intendentes and governors to demand the resignation of members of the executive Committees, amongst others, or workers' organisations in the public sector, on the ground that serious impediments prevent that organisation from functioning, and to appoint replacements. If the person concerned does not resign within the stated time limit, the intendente or governor issues a decree removing the person concerned from his position as a leader of the organisation. In the present case, the Government claims that Mr. Lillo had given to the Press a false account of a meeting which he had not attended. Moreover, the Committee noted that the Customs Administration was carrying out an administrative investigation into the case. Consequently, the Governing Body, while emphasising the importance of using judicial procedures in cases of dismissal of trade union leaders, urged the Government to supply information on the result of this investigation.
3. 422. In its communication of 15 October 1979, the Government states that Mr. Lillo had been temporarily suspended from his employment. In this regard, the Committee must recall that one of the basic principles of freedom of association is that workers must enjoy adequate protection against acts of anti-union discrimination in respect of their employment, and that this protection is particularly desirable for trade union leaders. In fact, to be able to perform their trade union duties in full independence, the latter must have the guarantee that they will not be prejudiced on account of the mandate which they held from their trade unions. Respect for this principle is also necessary to ensure that effect is given to the right of organisations to elect their representatives in full freedom. The Committee would like the Government to indicate whether Legislative Decree No. 349, which is the basis for the measures taken against Mr. Lillo, has been repealed as far as workers' organisations in the public sector are concerned.
4. 423. Certain allegations have also been put forward by various complainant organisations regarding the dissolution by the Government in October 1978 of seven trade union organisations. According to the Government, the conduct of the organisations thus dissolved showed that their methods of action and objectives coincided with the principles and aims of the Marxist doctrine. The organisations in question lodged a Constitutional appeal for protection before the Santiago Court of Appeal. Accordingly, the Governing Body had urged the Government to supply information on the results of these judicial proceedings, as well as information on the ultimate destination of the assets of the dissolved organisations.
5. 424. The Government states that the Appeal Court of Santiago dismissed the organisations concerned in the first instance. This decision was confirmed by a Supreme Court decree relating to four of these organisations. The matters involving the three other organisations are still taking place. The appeals for protection were rejected because the plaintiffs had requested the courts to declare Legislative Decree No. 2346 inapplicable on the ground that it was unconstitutional. The Court could not pronounce on this issue because the appeal was for protection, whereas it ought to have been for inapplicability. The Government states that the parties concerned had the necessary time to present this latter form of appeal before the Supreme Court. Regarding the use of the assets of the dissolved organisations, the Government goes on to state that this question is under study and that it should be resolved to the benefit of the workers.
6. 425. The Committee notes that the Supreme Court rejected, on procedural grounds, the appeal brought before it by four of the dissolved organisations. The three other matters are still under way. In these circumstances, the Committee can only recall that occupational organisations must not be subject to measures of suspension or dissolution by administrative authority. The Committee is also of the opinion that the right to appeal is not always a sufficient guarantee. In fact it is important that judges can examine the case on its merits and study the reasons for the dissolution of an organisation. In addition, the Committee wishes to ask the Government to supply information on the outcome of the appeals still under way.

D. Civil liberties connected with the exercise of trade union rights

1. 426. In the various stages of the consideration of the case, the Committee has examined a number of allegations concerning the imprisonment and disappearance of trade unionists or former trade unionists. In a report examined by the Committee in November 1978, the Government gave information concerning 24 out of the 67 persons mentioned in the list drawn up by the Committee in its 177th Report. In March 1979, the Government pointed out that the Santiago Court of Appeal had delegated one of its judges to discharge the special mission of considering the cases of those persons who had presumably disappeared while on trial before one of the tribunals of the Santiago Court of Appeal district. These cases concerned 36 of the persons mentioned in the complaints. At its session of May 1979, the Governing Body, on the recommendation of the Committee, urged the Government to continue to forward information on the result of the pending proceedings and, in a general way, on the persons mentioned in the list drawn up by the Committee in its 177th Report.
2. 427. In its communication of 9 October 1979, ICFTU states that 18 corpses bearing signs of torture have been discovered near the Yumbel cemetery. According to statements of the inhabitants of the area, the bodies had been buried at the end of October 1975. A large deployment of military forces and police had been seen at the time in the surroundings. ICFTU states that two of the bodies have been identified as trade union leaders from the paper industry at Lafa.
3. 428. The Government states that proceedings are following their course before the Court of Appeal. Consequently, the Committee wishes to reiterate its request for information made in its last report. In addition, the Committee notes that the Government has not yet answered the new allegations.

E. Other allegations

1. 429. In their complaint of 28 September 1979, the Professional Trade Union of Seafarers and the Port Employees' Trade Union alleged that the Intendente and the Governor of the Province of Concepción issued two decrees, Nos. 131 and 132 of 21 and 22 September 1979, which prevented the organisation of a trade union meeting for the purpose of designating the organising Committee of the "Group for the defence of the rights of the workers of the Province of Concepción". According to the complainants, the authorities adopted these decrees on the basis of unsubstantiated allegations devoid of all legal foundation.
2. 430. Regarding these latter allegations, the Government states that the development of a free trade union movement requires the maintenance of public order so that the exercise of their rights is guaranteed to all citizens. According to the Government, this meeting was called by a small group of trade union leaders so as to hinder the nominal trade union activities in the Province of Concepción and to interfere with public order. The Government states that Chilean law provides for legitimate methods, which are appropriate and easy to utilise, for groups representing workers to form organisations. But, in order to do this, these must be a gathering of the assemblies of the affiliated unions. Finally, the Government observes that collective agreements are not normally carried out in the Province of Concepción.
3. 431. While noting the Government's statements, the Committee points out that the planned meeting was to deal with trade union themes. Moreover, according to the allegations, the organisations and participants were trade unionists from different organisations. In this regard it wishes to point out that the authorities ought to avoid any interference of such a nature as to limit the right to hold trade union meetings or to restrict the legal exercise thereof.

Z. ANNEX

• PROVISIONS OF THE NEW LEGISLATION CONCERNING TRADE UNIONS AND COLLECTIVE BARGAINING MENTIONED BY THE COMMITTEE IN ITS REPORT
• I. Legislative Decree No. 2756, to lay down rules for the organisation of trade unions.
• TITLE II. ESTABLISHMENT OF TRADE UNIONS
  10. 10 To establish a works union there must be at least 25 workers representing at least 10 per cent of the total number of workers performing services in the undertaking.
• Where an undertaking consists of morn than one establishment, the workers employed in each such establishment may also set up a trade union, subject to there being at least 25 workers representing at least 40 per cent of the workers performing services in the establishment concerned:
• Provided that 250 or more workers performing services in a given undertaking may set up a trade union irrespective of the percentage that they represent.
• Notwithstanding the foregoing, it shall be permissible, in undertakings where less than 25 workers are employed, for eight of them to establish a trade union, on condition that they represent more than 50 per cent of the total number of workers in the undertaking.
  11. 11 To establish an inter-works union or a building workers, union there must be 75 workers.
• To establish a self-employed workers' union there must be 25 workers.
  13. 13 The board of management of a trade union shall deposit the original copy of the minutes-recording the establishment of the trade union and two copies of its rules, certified by the labour inspector, with the appropriate labour inspectorate within 15 days reckoned from the date of the meeting; the labour inspectorate shall record the particulars in the register of trade unions kept for the purpose. No fees shall be charged for the formalities referred to in this section.
• A trade union shall acquire legal personality from the date on which the documents are deposited.
• If the documents are cot deposited within the allotted time, a further constituent meeting shall be held.
  14. 14 A labour inspector shall not refuse to certify the original copy of the minutes and the copies of the rules referred to in the first paragraph of section 13. He shall also certify, by adding his signature, at least three copies of the minutes and the rules, which, after the deposit of the documents shall be handed to the trade union organisation with an annotation giving the appropriate registration number.
• The labour inspectorate may, within 90 days reckoned from the date of the deposit of the minutes, object to the establishment of a trade union if it has failed to comply with any requirement specified in this connection or if the rules are not in accordance with the law.
• The trade union shall remedy the defects or bring its rules into conformity with the observations made by the labour inspectorate within 60 days. Otherwise, its legal personality shall automatically be deemed to have been cancelled.
• TITLE III. RULES
  18. 18 The rules shall be approved by the constituent meeting of the trade union by means of a majority vote of the persons present, which shall be conducted in the form of a secret ballot in which each person has one vote.
• TITLE IV. BOARDS OF MANAGEMENT
  20. 20 A trade union shall be directed by a board of management consisting of three persons if there are between 25 and 249 members, of five persons if there are between 250 and 999 members, and of seven persons if there are 1,000 members or more;
• Provided that in an undertaking employing less than 25 workers the trade union shall be directed solely by one of its members, acting as chairman, who shall enjoy all the powers conferred on a board of management by this Legislative Decree. Where he is unable to act or is debarred from acting, he shall be replaced in the manner specified in the relevant rules.
• In the case an inter-works union not more than one worker from any given undertaking may be appointed as a member of the board of management. Where there are more members of the board of management than there are undertakings, one such member shall be deemed to have been appointed for each undertaking, the appointment of the remainder being a matter of free choice.
• No change in the number of members of a trade union or in the number of workers employed by the undertaking shall result in any increase or decrease in the number of members of the board of management holding office. This latter number shall always be adjusted to comply with the provisions of the first and second paragraphs of this section when the next elections are held.
  21. 21 Members of the board of management of a trade union must
  1. (1) have reached the age of 21 years;
  2. (2) be of Chilean nationality: Provided that aliens whose spouses are of Chilean nationality and aliens who have been resident in the country for more than five years may be members of a board of management;
  3. (3) not have been sentenced for a crime or an offence or be currently accused of one;
  4. (4) be able to read and write;
  5. (5) not be under any of the disabilities or incompatibilities provided for in the Political Constitution or the laws; and
  6. (6) in the case of a works union, have been continuously employed in the undertaking for at least two years. Where the undertaking has been in operation for less than two years, this requirement shall be deemed to be fulfilled by any worker who has been in its service since the commencement of its operations and, where there is no such worker, by any worker who has been continuously employed in the undertaking for at least one year.
  23. 23 Any worker who is a member of the relevant trade union and who fulfils the requirements laid down by this Legislative Decree for office as member of the board of management shall be eligible to stand as a candidate in elections to the board.
• Where a worker not fulfilling such requirements is elected to a board of management, the elections shall be held again.
• The fact that a worker is, or begins to be, under any disability or incompatibility shall be determined by the Directorate of Labour within 90 days following the date of his election or the event that gave rise to the incapacity or incompatibility; it shall not affect any transactions validly carried out by the board of management.
  24. 24 Votes that have to be taken for the purposes of an election or a motion of censure against the board of management shall be secret and shall take place in the presence of a notary public. Save as provided in section 12, no meeting of the trade union may be held on the day on which the vote is taken.
  25. 25 The presence of a rotary public shall not be required in the cases specified in this Legislative Decree if the trade union is established in an undertaking employing less than 25 workers: Provided that a written record of the proceedings shall be taken and a copy of it sent to the labour inspectorate, which shall certify that the circumstances are as stated.
  26. 26 The right to vote in elections to the board of management of a trade union shall be enjoyed by all workers who have been members of the union for at least 90 days before the date of the elections, save as provided in section 12.
• Where three members are elected to the board of management, each worker shall be entitled to two votes; if five are elected, each worker shall be entitled to three votes; and if seven are elected, each worker shall be entitled to four votes. Such votes shall not be cumulative.
• Notwithstanding the foregoing, each worker shall be entitled to one vote in elections for the appointment of a chairman in a union covered by the second paragraph of section 20.
  27. 27 Members of a board of management shall hold office for two years and may be re-elected, without prejudice to the provisions of section 31 or to the other cases in which they are required to give up office by decision of the competent court in accordance with the law.
• The board of management shall represent the trade union before the courts and elsewhere and its chairman shall be subject to the provisions of section 8 of the Code of Civil Procedure.
• The decisions of the board of management shall be taken by an absolute majority of its members.
  28. 28 Members of the board of management of a trade union shall enjoy the protection provided for in section 22 of Legislative Decree No. 2200 of 1978 from the date of their election and for six months after ceasing to hold office, on condition that they were not removed from office on account of a vote of censure passed by the general meeting of the trade union, as a result of a penalty imposed by the competent court and involving their removal or on account of the dissolution of the trade union or the closure of the undertaking.
  29. 29 Where any member of the board of management of a trade union takes part or encourages members of the union to take part in any of the activities referred to in section 15 of Legislative Decree No. 2200 of 1978, he shall be liable to the penalty of removal from office and debarral from holding similar office in any trade union for a period of three years, without prejudice to any penal sanctions to which he may be liable.
  30. 30 A board of management shall elect a chairman, secretary and treasurer from among its members, save as provided in the second paragraph of section 20.
• TITLE VI. TRADE UNION ASSETS
  50. 50 The registers recording the transactions and accounts of a trade union shall be regularly kept up to date and shall be available to members and the Directorate of Labour, which shall have the widest powers of inspection, to be exercised either on its own initiative or at the request of any interested party.
• Where the Directorate of Labour discovers any irregularity in the handling of funds, it may examine the relevant documents and make outpayments subject to the prior authorisation of the appropriate labour inspectorate for a period not exceeding 90 days. Where, notwithstanding the action taken under the foregoing provisions of this paragraph, outpayments are made without the relevant authorisation, the Directorate may order the current account to be blocked.
• The board of management of a trade union organisation shall promptly produce such economic and financial information and such information as to the accounts or assets as the Directorate of Labour may request or as the relevant laws and regulations may require where a board of management does not comply with the foregoing requirements, the Directorate of Labour shall allow it a period of not less than 30 days to comply with its obligations and shall warn it that, if it fails to do so, its members will be removed from office where the board fails to discharge its obligations within the allotted time, the members shall automatically cease to hold office and may not be re-elected for three years.
• TITLE VII. DISSOLUTION OF TRADE UNIONS
  54. 54 The fact that a trade union is dissolved shall be pronounced by a judge of the labour court or court of appeal, as appropriate, whose jurisdiction covers the place where the trade union has its offices.
• The judge shall acquaint himself, without any formal proceedings, with the documents submitted by the applicant and shall hear the board of management of the trade union concerned (or shall dispense with such a hearing if the board does not appear before him) and shall give a decision within 15 working days after serving notice on the chairman of the trade union or the person specified in the rules as the person to replace him.
• Notice shall be served on the chairman of the trade union in the form of a writ, accompanied by an in extenso copy of the application; the writ shall be served at the address registered with the labour inspectorate.
• The decision declaring the trade union to be dissolved shall be communicated by the judge to the appropriate labour inspectorate, which shall then delete the trade union from the register.
  55. 55 Application for the dissolution of a trade union may be made by the Directorate of Labour, any member of the union, an employer or any person having an interest in the case.
• TITLE VIII. FEDERATIONS AND CONFEDERATIONS
  57. 57 The expression "federation" means an association of more than three and less than 20 trade unions organised in accordance with this Legislative Decree for the purpose of co-operating in the activities carried on by the basic associations, particularly through
      • (a) the technical assistance required to achieve their purposes;
      • (b) the development of vocational and technical education for the workers; and
      • (c) the pursuit of purposes connected with mutual benefit and provident schemes.
  58. 58 The expression "Confederation" means an association of 20 or more trade unions or federations, or both, organised in accordance with this Legislative Decree for the purposes specified in the preceding section.
  59. 59 No federation or Confederation shall participate in collective bargaining or be a signatory to a collective contract in any circumstances whatsoever.
  63. 63 The general meeting of a trade union shall confirm its membership of a federation or Confederation every two years and, if it does not do so, the trade union shall automatically be deemed to have withdrawn from it.
• TITLE IX. SUPERVISION OF TRADE UNION ORGANISATIONS AND THE CORRESPONDING PENALTIES
  69. 69 Every trade union, federation and Confederation shall be subject to supervision by the Directorate of Labour and shall supply it with such information as it may request.
• TITLE X. MISCELLANEOUS PROVISIONS
  74. 74 This Legislative Decree shall not apply to officials employed by the central and decentralised organs of government, with the exception of workers employed in state undertakings. It shall likewise not apply to officials employed by the judiciary, the National Congress and state undertakings coming under the Ministry of National Defence or connected with the Government through that Ministry.
• II. Legislative Decree No. 2758, to lay down rules for collective bargaining.
• TITLE I. GENERAL PROVISIONS
  3. 3 Collective bargaining may take place in private undertakings and undertakings to which the State contributes or in which it participates or is represented.
• No collective bargaining shall take place in services or institutions forming part of the central or decentralised organs of government, the judiciary or the National Congress.
• Collective bargaining shall likewise not take place in public or private undertakings or institutions whose budgets have been financed by the State, whether directly or through duties or taxes, to an extent exceeding 50 per cent in either of the last two calendar years.
  4. 4 It shall be absolutely prohibited for one or more employers to bargain with workers employed in more than one undertaking, whether through the bargaining procedure laid down in this Legislative Decree or in any other manner.
  6. 6 It shall not be lawful for a strike to be called by workers in undertakings
     • (a) operating public utility services; or
     • (b) whose stoppage would cause serious prejudice to health, supplies for the population, the national economy or national security.
  7. For the result referred to in clause (b) of the preceding paragraph to occur, the undertaking in question must represent a significant part of the activity carried on in the relevant sector of the national economy or its stoppage would make it wholly impossible for services to be provided for a section of the population.
• Where, in cases covered by this section, direct agreement cannot be reached between the parties through collective bargaining, the matter shall be referred to compulsory arbitration in the manner prescribed in this Legislative Decree.
• Whether an undertaking is in this position shall be determined in the course of July each year by joint resolution of the minister of Labour and Social welfare, the Minister of National Defence and the Minister of Economy, Development and Reconstruction.
  7. 7 No federation or Confederation shall bargain collectively even if it covers workers employed in a single undertaking.
  12. 12 The following matters shall not be the subject of collective bargaining or of any kind of collective agreement or contract:
  1. (1) matters implying any modification of the workers' absolute rights or any modification of legal provisions laying down absolute requirements or prohibitions;
  2. (2) matters extraneous to the operation of the undertaking, establishment or farm;
  3. (3) matters restricting the employers power to organise, direct and administer the undertaking;
  4. (4) matters which may imply restrictions on the use of manpower or resources, such as restrictions on the recruitment of non-unionised workers or workers serving an apprenticeship, the size of the staff, the pace of production, the system of promotion or the use of machinery;
  5. (5) matters relating to the remuneration and conditions of employment of persons not belonging to the trade union or group engaged in the bargaining procedure or of persons who are not permitted to bargain collectively;
  6. (6) matters implying an obligation for the employer to pay for days not worked in the course of a strike;
  7. (7) matters directly or indirectly implying the financing of trade union or workers' organisations; and
  8. (8) matters relating to the creation of funds or other similar institutions for the payment of benefits financed wholly or partly by means of contributions paid by the employer. Contributions to such institutions may nevertheless be the subject of bargaining if the institutions have legal personality.
• Any stipulations contained in a collective contract or agreement or arbitration award bearing on any of the matters referred to above shall be absolutely null and void even if they form part of a decision reached or collective agreement signed directly between the parties without recourse to the collective bargaining procedure laid down in this Legislative Decree.
• The fact that such stipulations are null and void shall be declared by a labour court, either on its own initiative or at the request of any person or public or private corporation.
• TITLE VI. STRIKES AND TEMPORARY CLOSURES OF UNDERTAKINGS OR LOCKOUTS
  52. 52 A strike shall be called by an absolute majority of the workers involved in the bargaining procedure. Where this proportion is not attained, the workers shall be deemed to have accepted the employers last proposal.
• The foregoing shall be without prejudice to the provisions of the second paragraph of section 49.
  54. 54 After a strike has been called or at any time in the course of a strike the bargaining Committee or 10 per cent of the workers involved in the bargaining procedure may arrange for another vote to be taken to decide on any offer made by the employer during the collective bargaining or to submit the case to arbitration. Decisions shall be taken by an absolute majority of the workers concerned.
• Where a compromise solution is reached, the strike shall be called off and the workers shall resume their work in the same conditions as obtained when the draft collective contract was submitted.
• In such cases the provisions of section 50 shall apply, as appropriate.
  58. 58 During a strike or the temporary closure of an undertaking or a lockout the workers may take up other work or engage in temporary jobs outside the undertaking, which shall not imply that their contracts of employment with the employer are thereby terminated.
• During a strike the employer shall likewise continue to run the undertaking and carry out any duties or activities pertaining to it, for which purpose he may engage such workers as he considers necessary.
  62. 62 Workers maintaining their decision not to work after 60 days have elapsed since the strike began shall be deemed to have resigned of their own volition, the termination of their contracts of employment for this reason producing the same legal effects as if they had given notice.
• Notwithstanding the foregoing, workers in the position referred to in the preceding paragraph shall be entitled to severance pay.
  65. 65 Without prejudice to the provisions of section 6 the President of the Republic may by decree order a resumption of work for a period of 90 days if a strike is called or a lockout ordered and its nature, timing or length is such as to cause serious prejudice to health, supplies for the population, the national economy or national security.
• The decree ordering a resumption of work shall also be signed by the Minister of Labour and Social Welfare, the Minister of National Defence and the Minister of Economy, Development and Reconstruction and shall appoint a member of the corps of arbitration to act as mediator. Once the decree has been issued, the periods laid down in this Legislative Decree for strikes and lockouts shall be suspended and shall continue to run until their expiry only after the period specified in the preceding paragraph has elapsed.
• Work shall be resumed on the same conditions as applied when the draft collective contract was submitted.
• TITLE IX. MISCELLANEOUS PROVISIONS
  86. 86 Section 38 of Act No. 12927 is replaced by the following:
  38. "38 Where an illegal stoppage of work causes serious prejudice to any industry that is vital to the national economy or occurs in any transport undertaking, any farm or establishment producing or processing articles or goods that are essential to national defence or to supplies for the population or any public or public utility service, the President of the Republic may by decree order work to be resumed and have recourse to the civilian or military authorities.
• In such cases the workers shall return to work on the same conditions as applied when the illegal stoppage of work occurred.
• The authority taking action in the case shall assume responsibility for such measures as are necessary to yield a final solution to the dispute, but shall not in any circumstances have any powers of management."