Rapport intérimaire - Rapport No. 190, Mars 1979

1. 146. The Committee last examined this case at its November 1978 Session, when it submitted an interim report to the Governing Body.
2. 147. 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. A. The complainants' allegations

1. 148. Since it last examined the case, the ILO transmitted to the Government for its comments communications from the complainant organisations concerning the measures taken by the Government in regard to trade union matters in October 1978. The communications in question were from the World Federation of Trade Unions (dated 25 October 1978), the International Confederation of Free Trade Unions (dated 26 October 1978), the International Metalworkers' Federation (dated 27 October 1978), the International Federation of Textile, Garment and Leather workers (dated 30 October 1978), and the Permanent Congress for Trade Union Unity of the Workers of Latin America (dated 2 November 1978). The ILO also transmitted a letter from the United Front of Chilean Workers (dated 20 December 1978) and communications from the World Federation of Trade Unions and the International Confederation of Free Trade Unions dated 4 December 1978 and 12 January 1979, respectively, supporting the allegations made by a Committee for the defence of trade union rights in Santiago de Chile in a letter dated 26 October 1978. Moreover, the World Confederation of Labour transmitted, on 20 December 1978, a communication from the Latin American Federation of Textile, Clothing, Footwear, Leather and Allied Workers referring to the same facts as the allegations previously received from the other complainants.
2. 149. For its part, the Government forwarded information and comments in communications dated 16 November 1978, 4 and 19 January 1979 and 2, 7 and 9 February 1979. It should also be recalled that the Government had sent a report dated 31 October 1978 which the Committee had been unable to examine in depth at its November 1978 Session.
   • I. Question of the adoption of new trade union legislation
3. 150. In a statement made in October 1978, which the Committee had noted at its last session, the Minister of Labour had announced that the draft Labour Code was nearing completion and that the Government had adopted a legislative decree which guarantees full freedom for workers to establish trade unions.
4. 151. At its November 1978 Session, the Governing Body had, on the recommendation of the Committee, noted that the new trade union legislation was nearing completion and expressed the hope that the Committee would be able to examine this at its February 1979 Session and that it would be in full conformity with the principles of freedom of association.
5. 152. In its communication dated 19 January 1979, the Government indicates that the Minister of Labour has received and studied reports of the Council of State regarding trade union rights and collective bargaining. In an annex to this communication it is stated that the competent Committee of the Council of State held talks with numerous leaders of national organisations of workers and employers in different sectors of activity. The list of persons consulted shows that the workers' leaders heard by the Committee belonged to various trends in the trade union movement.
6. 153. The Government also declares that the draft reform of the political Constitution is currently being examined by the Council of State. The final text will contain basic standards relating to trade union rights and collective bargaining it will be submitted to a referendum.
7. 154. The present Minister of Labour, appointed at the end of 1978, made public in a statement made on 2 January 1979 in the presence of leaders of workers' and employers' organisations, the substance of the "Social Plan" setting out the Government's basic objectives and decisions regarding the establishment of a new institutional system for labour matters.
8. 155. In its communication dated 19 January 1979 the Government states that the process of working out the ways and means of implementing this "Social Plan" has involved numerous meetings with workers' and employers' leaders. In addition, a high-level special Committee has been set up to collect the proposals submitted by leaders representing the various trends and to submit as soon as it can conclusions concerning the final draft of the trade union legislation.
9. 156. The principles underlying this "Social Plan", as given out by the Minister of Labour, should lead to a system of trade unionism with the following characteristics:
   • - Free trade unionism, which means the right of the workers to act collectively through trade unions formed and organised according to the wishes of their members with no other restrictions than those established by law to ensure respect of the common good and the proper functions of the trade unions. This freedom entails as corollaries the right of the worker to join or leave a trade union by the voluntary and intransmissible exercise of his own free will, as well as the right of the trade union assembly to act as the central decision-making body of the trade union. As regards the number of trade unions that there may be in an undertaking and the right to form federations and Confederations, the law will have to lay down standards which allow the workers the variety they desire and at the same time meet the requirements for a rational and efficient functioning of the economy and the undertakings.
   • - Democratic trade unionism, which means the freedom of the members to appoint their executive organs and the guarantee that the latter act in conformity with the decisions taken by the members.
   • - Trade unionism endowed with resources, which means the obligation of the members to pay contributions to their organisation. Such contributions could be made by deduction at source by decision of each member in the case of a works union and of the majority of the members in the case of federations and Confederations.
   • - Independent and depoliticised trade unionism. This must exclude any use of the trade union organisation by groups or interests which are foreign to it, whatever their nature or origin. In view of past experience it is imperative not to permit the politicisation of trade unions and the prevent their being directed by persons engaged in party political activities or propagating doctrines contrary to the fundamentals of the institutional system. Decisions concerning each individual case of ineligibility and incompatibility will rest with independent tribunals. To offset these restrictions, the elected trade union leader will enjoy guarantees ensuring his independence in the exercise of his functions.
10. 157. In presenting the general outline of this "Social Plan", the Minister indicated that the law respecting trade union organisations would be enacted for 30 June 1979. Its enactment forms part of a gradual process which in the immediate future means establishing the widest possible freedom of assembly and adopting standards designed to facilitate the payment of workers' contributions to their unions.
11. 158. The Minister of Labour indeed announced the adoption of a resolution of the Minister of the interior, dated 2 January 1979, addressed to all the country's provincial administrators and governors, whereby all the executives of trade union organisations, be they trade unions, federations or Confederations, are authorised to hold ordinary or extraordinary meetings with their members to deal with the organisation's affairs without it being necessary to request prior authorisation from the competent authorities. Such meetings must be held at union headquarters and outside working hours. The provisions have been taken up again in Legislative Decree No. 2544 published in the Official Journal on 9 February 1979; the Legislative Decree abrogates, moreover, section 4 of Legislative Decree No. 198 relating to union meetings. It specifies that, if the organisation has no premises in which to hold its meetings, it can hold them in private premises provided that previous notification is given to the nearest police station. The provisions in question equally apply to associations of public servants as well as to employee groups in the public or semi-public sectors.
12. 159. Legislative decree No. 2545 was also promulgated on 9 February 1979 with a view to granting facilities to workers' organisations to enable them to collect contributions from their members without delay. The system adopted provides for the possibility of using, on a voluntary basis, the system of deduction of contributions at source by the employer. According to the Government, this arrangement has been favourably received both by the employer and by the workers it also applies to union organisations in agriculture as well as to public servant associations. Lastly, Legislative Decree No. 2545 provides that the affiliation of a trade union to an organ of higher level must be decided by an absolute majority of unionists during a meeting especially called for this purpose at which an Inspector of Labour or Notary must be present. The decision to affiliate must be reviewed every two years and decisions to collect trade union contributions by federations and Confederations must be ratified by first degree general meetings to be of effect.
13. 160. The Government indicates finally, that it will provide more detailed information on the new trade union legislation for the next session of the Committee, since by then it will be in a position to give exact details of the content of the standards to be adopted once all the opinions have been heard.
14. 161. The Committee notes the statement of the Minister of Labour according to which the new trade union legislation is due to be adopted before 30 June 1979. The Committee considers, in the light of the information provided by the Government, that the main principles underlying this legislation should permit the adoption of provisions ensuring greater respect of the principles of freedom of association than those which were in force. In addition, the Committee notes with interest that provisions have been adopted with a view to guaranteeing freedom of assembly for trade union organisations. It also notes that a legislative decree to facilitate the collection of trade union contributions has been promulgated.
15. 162. The Committee will not, however, be able to express its opinion in full knowledge of the facts as to whether the new trade union legislation is in conformity with the generally recognised principles on the matter until it is in possession of the complete text of the relevant provisions. The Committee notes in this regard the assurance given by the Government that more detailed information will be provided for its next session. In this context, and bearing in mind the concerns expressed within the ILO in regard to the trade union situation in Chile, the Committee cannot overemphasise the importance of its being able to examine the provisions of the legislation before their envisaged promulgation in June 1979. It therefore expresses the firm hope that the Government will be in a position, for its next session, to provide it with all the information necessary for a thorough examination of the draft legislation as well as the measures envisaged by the Government for implementing the new law.
16. 163. In the meantime, the Committee considers it useful to recall the recommendations formulated by the Fact-Finding and Conciliation Commission respecting the adoption of new trade union legislation. The Commission had considered that such legislation should, to be in conformity with the principles of freedom of association enshrined in the Constitution of the ILO and in order to be able to ratify the freedom of association Conventions, should recognise, in particular, the following principles:
17. (1) The right of workers, without distinction whatsoever, including public servants, to establish organisations of their own choosing. The implementation of this principles calls for the avoidance of all restrictions which limit freedom of choice as to the type and number of organisations the workers desire to establish, in the case both of primary trade unions and of federations and Confederations capable of forming organisations for different occupations, activities or industries.
18. (2) The right of workers to establish organisations without previous authorisation, and without participation by the authorities in the constituent procedure.
19. (3) The right of organisations to hold meeting free of control by the authorities, in order to discuss freely matters relating to internal administration and to the defence of the interests of their members.
20. (4) The right of organisations to elect their representatives in full freedom, without restrictions as to the number of terms of office, and to decide for themselves matters relating to the removal from office of officials by the members.
21. (5) The right of organisations to organise administration without interference by the authorities.
22. (6) The right of organisations to enjoy full guarantees as to facilities for their defence if the question of their suspension or dissolution should come before the courts.
23. 164. The Committee must also stress the value of systematic and thorough consultation of employers' and workers' organisations in the course of drafting trade union legislation. In this respect, the Committee notes that the Minister of Labour held talks with leaders representing various trends in the trade union movement as well as with employers' representatives.
24. 165. Finally, the Committee must point out that it would be highly desirable for the new legislation to be implemented in full as rapidly as possible so as to put an end to the major restrictions which have been imposed on trade union organisations since 1973.
    • II. Trade union activities
      • (a) Collective bargaining
    • 166. In a speech delivered in October 1978, the Minister of Labour had indicated that the country was preparing to restore collective bargaining in a new and modern way which would render it more effective in a really free society. According to the Minister, such progress had been made possible by the success with which the Government and the people of Chile had overcome the economic catastrophe in the country. Collective bargaining would take place at the level of the undertaking.
25. 167. At their November 1978 Session, the Committee and the Governing Body had expressed the hope that, when restoring collective bargaining, the Government would take account of the principles expressed by the Committee concerning compulsory arbitration which would be contrary to freedom of association.
26. 168. In presenting the Government's "Social Plan" at the beginning of January 1979, the minister of Labour stated that what had to be aimed for was a system of collective bargaining which would be:
    • - effective and just, which would suggest that it be conducted within each undertaking, without prejudice to the exceptions strictly necessary in the case of activities where such an arrangement would not be viable;
    • - technical, which would require that both parties with full knowledge of the relevant factors involved and with the aid of any technical assistance required;
    • - responsible and integrated, which can only be achieved within the framework of conciliation procedures since experience proved that mediation and arbitration arrangements did not enjoy the necessary confidence to facilitate equitable and peaceful solution of wage negotiations. Because of this, strikes proliferated to the extent that, instead of being the last resort in an unresolved conflict, they became a regular and immediate means of seeking a solution to such dispute. It is clear that striking cannot be legally accepted when it affects services in the public interest or when a work stoppage seriously impairs the population's health or food supplies, the country's economy or national security. In requiring compulsory arbitration in these cases, Chile is following the pattern prevailing in the most advanced democracies in this field. On the other hand, the situation is different in undertakings where strikes do not have such effects on society and where the problem is confined to a dispute between employers and workers without vitally affecting the State or the population. In these cases, there is nothing preventing the possibility of occupational strikes and lock-outs.
27. 169. In winding up this point, the Minister of Labour pointed out that his statements on collective bargaining did not concern employees of the State and municipalities. Finally, he indicated that the legislation respecting collective bargaining would enter into force before 30 June 1979.
28. 170. The Committee notes the information provided by the Government on this point, in particular regarding the early adoption of new legislation on collective bargaining. The Committee also notes with interest that, according to the statements of the Minister of Labour, the procedure of compulsory arbitration would not be applied to all collective labour disputes, contrary to what had been previously announced, but only to limited cases.
29. 171. In these circumstances, the Committee expresses the hope that the re-establishment of collective bargaining which the Fact-Finding and Conciliation Commission had already declared to be a general aspiration of trade union circles, will be effective in the very near future. In the opinion of the Committee, this would constitute an important factor in improving industrial relations in the country.
30. 172. The Committee noted nevertheless that, according to the statement of the Minister of Labour, the framework for collective bargaining will be mainly at the level of the undertaking. In this regard, the Committee considers it useful to point out that the law should not stand in the way of the participation of federations and Confederations in voluntary collective negotiations concerning conditions of work.
    • (b) Allegations concerning collective labour disputes
31. 173. Some of the complainant organisations, and in particular the ICFTU and the WFTU, had referred to collective labour disputes which had recently taken place in Chile, particularly in the mining sector at Chuquicamata. The complainants explained that, after two years of fruitless action to obtain higher wages, the workers of Chuquicamata had submitted, on 8 August 1978, a list of the following social and economic demands: a 50 per cent increase in wages, an increase in the residence allowance, an increase in the production bonus and scholarships for children who were studying. The management of the public mining undertaking reacted by dismissing trade union leaders who had taken part in the assembly during which the list of demands had been approved. In protest against these measures and against the prices of meals in the undertaking, the miners began what has been known as the "canteen strike", refusing to take their meals in the canteens of the undertaking.
32. 174. Following this movement, the Government declared a state of siege throughout the province. This measure had various consequences, in particular the obligation to submit a duly justified written request for the holding of any meeting or assembly, to be presented 24 hours in advance to the Garrison Commander. Movements of persons within the province and leaving the province were controlled, as was entry to the mines, to which only the workers were allowed access. In addition, workers were arrested, sent to a remote part of the country, or placed under house arrest.
33. 175. In its report submitted in October 1978, the Government had indicated that the dispute had been settled by negotiations, as a result of which various bonuses and allowances had been granted to the workers and that the workers dismissed had been reinstated. In addition, the workers who were arrested had been released.
34. 176. The Government states moreover in its communication dated 19 January 1979 that there was no strike movement during this collective dispute but only a refusal to take meals in the canteens of the undertaking as a mark of protest against the delay in satisfying their claims. Some elements sought to make use of this legitimate protest to obtain political benefits, a move which the Government prevented in so far as it went beyond the occupational scope of the activities which trade unions should exercise. Furthermore, a worsening of the dispute would have affected the entire national economy. No trade union leader was involved in the activities which were extraneous to the purely occupational movement. The Government repeats that the workers dismissed for having participated in subversive activities were all reinstated. It declares that the relocation of certain workers had been of brief duration and that the place of residence assigned them was only 50 kilometres from Chuquicamata. Finally, the Government indicates that, in the course of the negotiations, relations were never severed between the management of the undertaking and the trade unions, and the dispute was settled a month and a half after it had begun.
35. 177. The Committee notes the information provided by the Government regarding this collective labour dispute. It notes that the dispute in question did not involve a strike but only a protest action in support of claims of an occupational nature. According to the Government, the dismissals and placing under forced residence of certain workers were carried out because of the subversive activities conducted by the persons concerned on the occasion of this dispute. These measures were later rescinded.
36. 178. While noting this statement, the Committee is bound, however, to point out that the dismissals of workers occurred very shortly after the general assembly had decided to launch the protest movement. Moreover, the articles which appeared in the Chilean press concerning this affair show that trade union leaders of all tendencies called for the reinstatement of those concerned. The Committee also observes that the declaration of a state of siege in the region following the events in question resulted in major restraints being placed upon the activities of the trade union organisation, in particular as regards the right of assembly.
37. 179. The Committee notes, finally, that the dispute was settled through agreement between the parties. As a result, it considers that, while drawing the attention of the Government to the considerations expressed above, it would be pointless to go any further into this aspect of the case.
    • (c) Trade union elections
38. 180. Several complainant organisations, including the ICFTU, the WCL and the WFTU, sent communications protesting against the method employed by the Government in organising the trade union elections on 31 October 1978. Some of them state that the 35,000 trade union leaders who were in office prior to that date were unable to present their candidatures.
39. 181. In a communication dated 6 November 1978, the Government supplied the text of Legislative Decree No. 2376 concerning the change of trade union executive Committees by election, and of Legislative Decree No. 159 confirming these elections. The Committee had also noted a speech made by the Minister of Labour announcing the organisation of these elections shortly before the date fixed for them to be held and describing the procedure adopted as well as the conditions of eligibility established.
40. 182. At its November 1978 Session, the Committee proposed to examine this question in a more detailed manner at its next session. It had, however, noted that the legislative decree on the elections contains provisions on ineligibility and had indicated that, in principle, the lifting of the prohibition to hold trade union elections which was in force to date by virtue of Legislative Decree No. 198 of 1973, could signify progress, provided that the principles of freedom of association are respected including the right of workers freely to elect their representatives. On the recommendation of the Committee, the Governing Body had requested the Government to transmit information concerning the reasons for maintaining these cases of ineligibility.
41. 183. At its present session, the Committee examined carefully the regulations on the organisation of these elections transmitted by the Government. Legislative Decree No. 2376, dated 26 October 1978, reveals that the elections concerned basic organisations in the private sector, i.e. at the undertaking level. The scope of the legislative decree excluded organisations in the public sector as well as in the agricultural, maritime and copper sectors. This legislative decree provides, in section 3, that workers' trade unions will be administered by an executive Committee consisting of three persons. Section 4 introduces amendments to section 376 of the former Labour Code respecting conditions of eligibility for the functions of trade union leader. According to the article as amended, to be elected to the leadership of a trade union organisation persons must possess the following qualifications:
    • (a) they must be at least 21 years of age;
    • (b) they must be Chilean. However, foreigners married to persons of Chilean nationality and persons residing in the country for more than five years may become trade union leaders;
    • (c) they must not have been sentenced for a crime or misdemeanour, and an action for a crime or misdemeanour must not be pending against them;
    • (d) they must be able to read and write;
    • (e) they must have five years' unbroken service with the undertaking (except where the undertaking has existed for less than five years);
    • (f) they must not have engaged in party political activities, been active in a political party, had responsibilities a public representative or as a representative of a political party during the preceding ten years.
      • Non-fulfilment of any of these eligibility conditions during a trade union leader's term of office will constitute grounds for incapacity to exercise the functions of the office. However, in its communication of 2 February 1979, the Government points out that the fact of having exercised political activities will not constitute a ground for ineligibility. An incompatibility will only exist when a political office and trade union function are carried out simultaneously.
    • 184. In accordance with section 5 of the legislative decree, the Directorate of Labour is responsible for seeing that the rules laid down in section 376 of the Labour Code, as amended, are applied at all times. The Directorate of Labour will deal with questions arising in connection with the conditions established in paragraph (f) of this section and will settle them according to a procedure fixed by regulations. The person concerned will be able to appeal to the competent court for labour matters at the headquarters of the trade union within five days, without any possible extension. The court must call upon the Director of Labour to prepare a report which must be submitted within 15 days. It must hand down its judgement within the following 15 days.
42. 185. According to section 6, to assume his functions as a trade union leader, the member must swear the following oath before the competent labour inspector: "I swear that I fulfil the conditions required by the law to perform the duties of leader of a trade union organisation, that I do not and will not participate in political activities or in a political movement during the exercise of my duties, that I shall not attempt to politicise trade union organisations by distorting their objectives, that I shall not consent to be a party to such ends and that my sole objective shall be the just representation of the affiliated workers." Two copies of the oath will be drawn up and signed jointly by the trade union leader and the labour inspector.
43. 186. The Legislative Decree also contains temporary provisions respecting the organisation of the elections on 31 October 1978. All trade union members who fulfilled the conditions set forth in the Decree are candidates. Consequently, the presentation of candidatures is not authorised. Each union member has two votes and the three persons who have obtained the greatest number of votes are elected. The election must be conducted in the presence of a labour inspector or an official appointed for this purpose. The elected leaders will hold office for a period of four years. The oath required by the Legislative Decree must be sworn within 30 days of the election. The leaders who are currently holding offices which are not subject to election under the Legislative Decree must swear a similar oath to that required of the new leaders. Those who do not comply with this obligation will cease to exercise their functions. Finally, persons whose term of office was prorogued or who were appointed under the terms of Legislative Decree No. 198 may not be appointed as trade union leaders.
44. 187. The various communications from the Government show that Legislative Decree No. 2376 laid down temporary standards and that the final procedure for trade union elections will be defined in the new legislation. In the view of the Government, the elections carried out on 31 October 1978 had the merit of being the first to be held with a truly secret ballot. The Government also points out that 90 per cent of the workers concerned voted. As regards the conditions of eligibility laid down by the Legislative Decree, the Government points out that these applied both to the leaders whose term of office had been prorogued by Legislative Decree No. 198 (and hence elected before September 1973) and to those appointed in accordance with the temporary standards placed on seniority. The Government also states that the elections have not produced consequences for federations and Confederations for the latter are administered by their own by-laws and these do not require leadership in a first-degree organisation so as to become a member of their controlling organ. Finally, the Government states, in its communication dated 19 January 1979, that the new trade union legislation will not retain this type of exclusion.
45. 188. In his speech of 2 January 1979, the Minister of Labour also indicated that all future trade union elections would be governed by permanent provisions. Moreover, these provisions will provide for the possibility for a specified number of members of a trade union which has renewed its executive Committee in accordance with Legislative Decree No. 2376 to call for the removal from office of the leaders once only in the course of their term of office. A new election will then be held according to the terms of the final legislation on the subject.
46. 189. The Committee considers that the right of workers' organisations to elect their leaders freely constitutes an indispensable condition for them to be able in fact to act in full freedom and to promote the interests of their members effectively. For this right to be fully acknowledged it is essential that the public authorities refrain from any intervention which might interfere with the exercise of this right, whether it be in determining conditions of eligibility of leaders or in the conduct of the elections themselves.
47. 190. The Legislative Decree which governed the elections of 31 October 1976 laid down conditions of eligibility, some of which raised problems of compatibility with the principles of freedom of association, in particular the provisions concerning seniority in the undertaking, the fact that candidates may not have been sentenced or have an action pending against them for a crime or misdemeanour (i.e. including offences which might not be grounds for justified disqualification for the exercise of trade union functions), and non-participation in political activities. As regards this last point, the Committee also notes that the newly elected leaders, or those remaining in office, have been required to swear an oath in order to exercise their functions and to permit themselves thereby not to engage in political activities. The Committee considers that the imposing of such an obligation on trade union leaders might involve restrictions on the freedom of action of trade union organisations incompatible with the principles of freedom of association.
48. 191. The Committee notes that, in addition to these conditions of eligibility, the Legislative Decree laid down a temporary standard ruling out the election of leaders whose term of office was extended or who had been appointed by virtue of Legislative Decree No. 198. In other words, in the trade unions in which elections had been held, the trade union leaders in office at the time of the elections, including those who had been elected before 1973, could not be candidates. The Committee considers that such an exclusion was not only contrary to the principles of freedom of association, but it also deprived these organisations of experienced leaders.
49. 192. Nevertheless, the Committee notes the recent statements of the Minister of Labour according to which new elections would be held before the term of office of the leaders elected in October 1978 expires, and that these elections will be organised on the basis of the new trade union legislation which, according to the Government will not retain this type of exclusion. In this regard the Committee notes the Government's statement that the fact of having exercised political functions will, in the future, no longer constitute a ground of ineligibility.
50. 193. The Committee notes, finally, that the number of leaders of an organisation should be limited to three persons. It considers that matters of this type should be for the trade union organisations themselves to decide.
    • III. Measures affecting trade union officials and organisations
      • (a) Removal from office and dismissal of trade union leaders
    • 194. Complaints had been presented regarding the removal from office and dismissal of several trade union officials. Certain of these concerned four copper workers' officials (Milton Puga, Director of the Occupational Onion of Employees in the Copper Mines of El Teniente; Juan Fincheira, Chairman of the same union and Deputy General Secretary of the Latin American Committee for Miners and Metallurgy Workers; Carlos Arellan, Director of the same union; and Arturo Latuz, Director of the Occupational Onion of Caletones).
51. 195. The four leaders in question had been dismissed from their jobs. In these cases it seems that the undertaking had recourse to one of the reasons for dismissal introduced in the legislation by Legislative Decree No. 930 of 1975, namely the participation in illegal acts provoking the absence of workers. The persons mentioned had been assigned to residence, and there had been a work stoppage for absenteeism on the part of certain of the workers of El Teniente (the measure of assignment to forced residence had been rescinded subsequently). The persons concerned had appealed to the labour court. As a result of their loss of employment they had automatically lost their trade union responsibilities and had been replaced by new trade union leaders under the procedure provided for in Legislative Decree No. 198.
52. 196. The Government had stated in its report of October 1978 that Juan Fincheira, Milton Puga, Carlos Arellano and Arturo Latuz had reached an agreement with the National Copper Undertaking before the Court of Rancaqua, by virtue of which the undertaking cancelled the dismissal of these persons. For their part, the persons concerned had given up the responsibilities they exercised within the National Copper Undertaking, El Teniente Division, as well as everything which goes with being a worker in the El Teniente Division, starting from 24 November 1977. The persons concerned had in addition received various indemnities including a special and voluntary one, amounting to 30 months' wages and 36 months' in the case of Arturo Latuz (in compensation for the trade union immunity of which he could possibly avail himself).
53. 197. Since its last session, the Committee has received allegations stating that the agreement reached between the National Copper Undertaking and the leaders removed from office was not arrived at in accordance with the will and desires of the persons concerned but as a result of the pressure exercised on them and their families and the distressing economic situation in which they found themselves.
54. 198. For its part, the Government states in its communication of 19 January 1979 that the parties agreed not to await the judgement of the Court of Rancagua and requested the Court to approve an agreement which would terminate all controversy. The indemnities were granted in accordance with the law and accepted freely by the parties - there can be no doubt about this since the workers benefited throughout from the advice and support of capable and freely chosen defence.
55. 199. The Committee notes that the dispute between the four leaders in question and the National Copper Undertaking was the subject of an agreement between the parties. It notes, however, that contradictory statements have been made on this point, the allegations stating that pressure was put on the leaders, while the Government stresses their free acceptance of the agreement in question. In this regard, the Committee notes that the agreement was reached before the competent court and that the trade union leaders were able to be assisted by freely chosen defence counsel. In these circumstances, the Committee considers that it would be pointless to pursue the examination of this aspect of the case.
56. 200. The complaints also referred to the removal from office of trade union leaders in the public sector (in the National Confederation of Workers' Association in the State Bank of Chile - Messrs. Andrés del Campo Hamel and Arturo Moreno Patiño - and the National Federation of Maritime Employees - Mr. Carlos Frez). In addition, new allegations refer to dismissals and removal from office of trade union leaders in the teaching (Messrs. Esteban and Ilabaca) and public works (Messrs. Jorge Ramirez and Luis Muñoz) sectors.
57. 201. In its report, dated 31 October 1978, the Government had stated that, as regards the leaders of the National Confederation of workers' Associations in the State Bank of Chile, the term of office of these persons, according to the rules of the organisation, was two years. Their term of office should, therefore, have ended in 1974 and they remained in office solely by virtue of the temporary standards which prolonged the term of office of trade union leaders. Because of the extreme length of the period in which they had exercised their functions and at the request of the staff of the Bank themselves, the Government had put an end to the term of office of Andrés del Campo Hamel and Arturo Moreno Patino. The appointment of their replacements on the executive Committee of the Confederation was effected by the persons concerned themselves. The Government added that the two leaders in question continued to perform their occupational functions in the bank. Finally, the Government stated that standards would be laid down within 180 days to govern the organisation of bank workers.
58. 202. The WFTU and the ICFTU, for their part, referred to the promulgation of Legislative Decree No. 2345, dated 17 October 1978, in which there is a provision authorising the Minister of the Interior to dismiss any official of the public service without any guarantee or immunity.
59. 203. In its communication of 7 February 1979, the Government supplies information about unionists in the maritime sector as well as the education and public works sectors about whom it is alleged that they have been removed and, in some cases, dismissed. Regarding the Chairman of the Harbour Workers' Federation, Carlos Frez, the Government points out that he was replaced by the Vice-Chairman because he had made use of the organisation for aims not related to the interests of the union and incompatible with the functions vested in him. The person concerned has been submitted to an administrative procedure conforming to the decree with force of law, No. 338 of 1960, and consequently, his services in the undertaking have been terminated. There are no legal proceedings over this affair. Messrs. Esteban and Ilabaca, from the education sector have on their part been submitted to proceedings examined by the regional secretariat of the Minister for Education at Curico for infringement of the decree with force of law, No. 338 of 1960. Those concerned have not presented any appeal. The Government is not aware that Mr. Esteban has been a union leader, whereas Mr. Ilabaca was until 1973. As regards Messrs. Jorge Ramirez and Luis Muñoz, members of the workers' association of public works, the Government points out that these two persons were removed by their own union in December 1976. Subsequently they underwent an administrative procedure for absence from work. Finally, the Government points out that no official has been dismissed by virtue of Legislative Decree No. 2345, which has been in force for over three months.
60. 204. The Committee notes the information provided regarding the removal from office tad dismissal of public sector workers' leaders. This raises the more general problem of the right to organise in the public sector. The 1931 Labour Code provides, in section 368, that wage-earning and salaried employees in the service of the State or municipal authorities or belonging to State undertakings do not have the right to form a union or to belong to any union. Likewise, section 166 of the Administrative Regulations prohibits wage-earning and salaried employees in the service of the State from forming trade unions. Nevertheless, for many years now, public sector workers have formed various organisations of a trade union nature.
61. 205. The Committee makes a point of recalling in this regard that the Fact-Finding and Conciliation Commission had considered that the right to form organisations of their choice should be granted to all workers both in the private and in the public sector, including officials in the service of the State. The granting of this right to public employees means that they must enjoy adequate protection against acts of anti-union discrimination in respect of their employment, as was stressed by the International Labour Conference in adopting the Labour Relations (Public Service) Convention, 1978 (No. 151).
    • (b) Dissolution of several trade union organisations
62. 206. Allegations were presented by several complainant organisations concerning the dissolution by the Government of certain trade union organisations in October 1978. The Committee had taken note, at its November 1978 Session, of the provisions of Legislative Decree No. 2346 of 17 October 1978 (published in the Official Journal) concerning the dissolution of seven trade union organisations. The reasons set out in the decree indicate, in the first place, that it is the duty of the State to ensure that "intermediate institutions" act within the limits of their competence, and to protect citizens against activities which may lead, directly or indirectly, to the development of social strife or subversive doctrines that are contrary to the general interest. Secondly, it is stated that the conduct of those organisations mentioned in the legislative decree shows that their means of action or their objects coincide with Marxist principles or objectives. For this reason, the decree continues, these organisations have seriously and persistently distorted the nature of their functions to such a point that their existence and their functioning are incompatible with the necessity to safeguard national unity.
63. 207. Accordingly, the following are prohibited and considered as illegal organisations: the Ranquil Confederation, the United Confederation of Peasant Workers, the National Federation of Metallurgical Unions, the Occupational Union of Construction Workers of Santiago, the National Union of Textile and Clothing Workers, the Industrial Federation of Building, Wood and Construction workers and the Industrial National Federation of Mineworkers. These organisations were dissolved and their legal personality, where appropriate, removed. The legislative decree specifies moreover that the same applies to their affiliate organisations (section 3). Finally, the assets of the dissolved organisations are transferred to the State (section 4).
64. 208. However, in its communication of 16 November 1979, the Government, referring to an official statement of the Director of Labour, pointed out that the dissolution measure had not been applied to the basic unions since the affiliated organisations had not been counted exactly. In addition, the Minister of the Interior had indicated that the current holding of their assets is only temporary and that the Government has decided that these assets are intended for the workers in the undertaking concerned and that they will have full and free use, management and possession of them.
65. 209. At its November 1978 Session, the Committee had, in particular, pointed out that the procedure followed in this case for the dissolution of these organisations was not compatible with the principle that workers' organisations should not be dissolved by administrative authority. Accordingly, the Governing Body had, on the recommendation of the Committee requested the Government to provide, as soon as possible, its observations on this aspect of the case.
66. 210. In its communications of 19 January and 7 February 1979, the Government states that all the organisations concerned had lodged a Constitutional appeal for protection before the Santiago Court of Appeal and that, as a result, the matter is pending in the civil courts. The Government adds that the workers have not been deprived of the right to organise and that they retain the possibility of forming and promoting organisations for the legitimate defence of their interests. Moreover, it points out that, in accordance with the law, the assets belonging to the dissolved organisations have been listed by the minister of Public Property and will be destined for the organised workers themselves if the Court denies the appeals for protection. The Government also points out that the organisations affiliated to the dissolved groups have not been touched by the dissolution measures. The Government will be mindful of the principles set out by the Committee on this question in its "Social Plan" to be put into concrete form in the new legislation.
67. 211. The Committee notes that the dissolved organisations have lodged an appeal and that the case is pending before the judiciary. The Committee would like to be informed about the results of these court proceedings. It considers that it would also be useful for it to be provided with information on the subsequent assignment of the assets of these dissolved organisations.
    • IV. Civil liberties relevant to the exercise of trade union rights
68. 212. At various stages in the examination of this case, the Committee examined allegations concerning the detention and disappearance of trade unionists or former trade unionists. In its report of 31 October 1978, the Government had provided information on 24 of the 67 persons mentioned in the list established by the Committee in its 177th Report. While noting this information the Governing Body had, on the recommendation of the Committee, requested the Government to continue to supply information on the persons appearing on this list.
69. 213. In its communication of 7 February 1979, the Government states that there are no trade unionists actually detained in Chile. Regarding the persons who are presumed disappeared, it indicates that it will continue to keep the ILO informed of the result of the searches underway and of the cases instituted before the judiciary.
70. 214. The Committee notes this statement made by the Government and requests it to continue to supply information on the persons appearing on this list, in particular on the results of the efforts made to trace the missing persons.