Rapport définitif - Rapport No. 241, Novembre 1985

1. 156. The complaint is set forth in a communication from the National Trade Union Co-ordinating Body dated 7 May 1984. The Government replied by a communication dated 24 January l985.
2. 157. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), nor the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. A. The complainants' allegations

1. 1. Physical attack on a trade union leader
   • (a) The complainant's allegations 158. The complainant alleges that Mr. Clotario Blest, the founder of the National Association of Public Employees (ANEF) and of the Unitary Confederation of Workers (CUT), was the victim of a physical attack in May 1983. The attack was perpetrated the day after the leader had participated in the meeting at which the National Command of Workers was formed, bringing together the principal national trade union organisations of the country.
   • (b) The Government's reply 159. The Government states that at the time it deeply regretted the physical attack made on Mr. Clotario Blest, the founder of the National Association of Public Employees (ANEF). The aide-de-camp of the President of the Republic had therefore visited Mr. Blest's home in order to convey to him the personal feelings of the President of the Republic and his interest in the victim's health.
   • (c) The Committee's conclusion 160. The Committee observes that neither the complainant nor the Government has indicated who is thought to be responsible for the alleged attack or what form it took. In these circumstances, the Committee does not consider that it is in possession of sufficient information to express an opinion on the matter.
2. 2. Allegations concerning detention
   • (a) The complainant's allegations 161. The complainant organisation makes the following allegations:
     • - On 9 June 1983 Mr. Roberto Arredondo, the national leader of the Bahéa Employees' Federation and Chairman of the Regional Council of the Democratic Union of Workers (UDT) at Concepción, was detained for several hours by carabineros and accused of carrying invitations to the protest called by the National Command of Workers.
     • - On 10 June 1983 officials of the Police Department detained at Rancagua Marcos Molina, first director of the El Teniente area organisation and treasurer of the Caletones Industrial Trade Union, and Arturo Vera, first director of the Sewel y Mina Trade Union.
     • - Eduardo Sepúlveda, national leader of the "Peasant Triumph" National Confederation of Agricultural Workers, and José Morales, President of the Talca Provincial Federation of that organisation, were detained at Talca. Both arrests took place on 11 June 1983.
     • - In July 1983 Mr. Diego Lebitum, the secretary of Establecimientos Savory Trade Union No. 2, and Mr. Guillermo Saavedra Pinto, a member of the Union, were arrested while they were holding a peaceful public demonstration in the course of a legal strike called by their union.
     • - In October 1983 Rodolfo Seguel, Eugenio López, Manuel Rodréguez, Eduardo Déaz, Juan Meneses and Enés Zepeda, the trade union leaders of the "El Teniente" copper mine, were detained for several hours for holding a peaceful demonstration.
     • - Three workers were detained in October 1983 for carrying placards at a peaceful demonstration by 40 persons who were protesting at having been dismissed en bloc from their work at the Club de la Unión.
     • - In December 1983 Hernol Flores, the President of the ANEF, was detained for distributing leaflets on the public highway.
     • - In December 1983 three leaders of the Youth Department of the National Trade Union Co-ordinating Body were detained for reading a greeting to Raúl Alfonsín, the President of Argentina, in front of that country's Embassy in the capital.
     • - In March 1984 Manuel Bustos, the President of the National Trade Union Co-ordinating Body, and Sergio Troncoso, President of the Confederation of Building Workers, together with other persons, were detained for heading a peaceful protest march demanding the release of José Ruiz Di Giorgio.

B. The Government's reply 162. With reference to the alleged detention of Mr. Roberto Arredondo, the trade union leader, the Government states that it has no information on this matter. From the tenor of the complaint, the detention would appear to have been due to the carriage of pamphlets bearing instructions for one of the so-called "peaceful protests" called by sectors in opposition to the Government. According to the complainants, however, the person in question was then released. The Government stresses the need for complainants to furnish more information so that an answer may be given, for complaints made in that way are lacking in seriousness.

1. 163. With reference to the alleged detention of Mr. Marcos Molina Catalán and Mr. Arturo Vera Mauro, the Government states that at about 2.20 p.m. on 11 June 1983, as those persons were approaching a taxi loaded with leaflets inviting participation in actions directed against the Government, they were intercepted by officers of the Rancagua Police Department, who arrested them and took them to the police station. After interrogation at the police station, where they spent six hours, they were released. There are no legal proceedings in progress against them at the present time and both are at liberty.
2. 164. With regard to the alleged detention of Eduardo Sepúlveda and José Morales, the Government states that, "owing to the time that has elapsed, it has not been possible to confirm these complaints".
3. 165. With reference to the detention of Mr. Diego Lebitum and Mr. Guillermo Saavedra Pinto, the Government states that, owing to the time that has elapsed, it has not been possible to check the accuracy of this complaint. If it was accurate, the matter was purely one for the police and obviously, as has been explained in other cases, detainees are released once the police have checked their identity and address.
4. 166. With reference to the detentions which occurred in October 1983, the Government states that, when a breach of public order is attempted, the police, in discharge of their obligation to ensure the maintenance of order and civic peace, proceed to arrest the perpetrators in order to check their identify and address and, if the situation so warrants, summon them to appear before the local police court which deals with offences of this kind. The cases mentioned by the complainant organisation did not reach the stage of being heard by the competent local police court.
5. 167. With reference to the detention of Mr. Hernol Flores, the Government states that there is no record of his detention and that, since neither the date nor the place of detention nor the authority which ordered it are mentioned, the information is insufficient for the purpose of verifying the complaint. As to the alleged detention of three leaders of the Youth Department of the National Trade Union Co-ordinating Body, the Government states that this complaint is based on a routine police operation. A group of persons obstructed the free movement of pedestrians and access to the Embassy of the Argentine Republic at Santiago. The police, in the performance of their duty to maintain public order, disbanded this unauthorised public meeting and, when the identity and addresses of those responsible had been checked, they were released. Consequently, the Government continues, this complaint has nothing to do with freedom of association.
6. 168. The Government states further that Mr. Manuel Bustos and Mr. Sergio Troncoso were detained, together with five other persons, by carabineros on duty on the public highway on 22 March 1984 and taken to the First Carabineros Station. The grounds for their detention were that, together with a group of 50 persons, they went on a march through central streets with the Lawcourts Building as their goal. This procession was held without permission from the authorities and in such a way as to cause obstructions to pedestrian and vehicular traffic. These persons were released immediately after their identity and addresses had been checked and they had been summoned to appear before the local police court for the offence presumed to have been committed. C. The Committee's conclusions 169. The Committee observes that, with reference to some of the alleged detentions, the Government states that the lack of data from the complainant or the lapse of time has made it impossible to verify the facts. With reference to other detentions, the Government has indicated that the facts had nothing to do with freedom of association or that the persons concerned had been held for several hours for the purpose of checking their identity and addresses, questioning them and, where appropriate, summoning them to appear before the local police court.
7. 170. The Committee concludes that it is not in possession of sufficient information to express a separate opinion on each of the alleged detentions. The Committee wishes to point out, however, that the number of instances in which trade union leaders and trade unionists are alleged to have been detained and summonsed or questioned runs to about a score. In these circumstances, while observing that the allegations date back in most cases to 1983 and that the persons in question are at liberty, the Committee considers it useful to repeat that measures depriving trade union leaders and trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights.
8. 3. Allegations concerning demonstrations
   • (a) The complainant's allegations 171. The complainant organisation makes the following allegations: - In October 1983 a public demonstration by 70 trade union organisations in the Plaza 11 de Septiembre at Valparaiso was violently prevented. The repressive measures left several persons injured and 42 in detention. - In November 1983 the Administration at Rancagua withheld permission for marches preparatory to an action proposed by the Workers' Provincial Command of Cachapoal. Similarly the Administration withheld permission for an action by the same organisation in the place it had chosen. - On 14 December 1983 300 self-employed workers (itinerant vendors) were subjected to brutal repressive action in the centre of Santiago and had to seek refuge in Santiago Cathedral. These workers, organised in the Itinerant Vendors' Trade Union, in addition to suffering physical acts of oppression, were subjected to an illegal scrutiny of their merchandise and prevented from working in the streets of Santiago by a security force composed of special squads of carabineros and civilians reinforced by dogs specially trained to attack human beings. - In January 1984 a demonstration called by the National Trade Union Co-ordinating Body was violently put down. Carabineros arrested 27 persons and left about 10 injured.
   • (b) The Government's reply 172. With reference to the allegations concerning the demonstration in the Plaza 11 de Septiembre at Valparaiso, the Government states that this accusation suffers from vagueness and cannot be verified owing to the time which has elapsed. Generally speaking, the Government points out that the police force has the inescapable duty of maintaining public order and keeping the civic peace and that, if a breach of public order has been attempted, the police obviously has to intervene. In such cases the persons presumed to have been arrested, whose names are not given, are released after their identity and addresses have been checked, unless they are summoned to appear before the competent local police court.
9. 173. The Government states further that the Regional Administration at Rancagua withheld permission for marches owing to the problems they create for pedestrian and vehicular traffic. Furthermore the Workers' Provincial Command of Cachapoal is not a trade union organisation and has no legal personality, legal existence or known address. Its presumed leaders are not registered and it is not known who elected them or for how long. It is a de facto body accountable to no one.
10. 174. With reference to the alleged oppression of itinerant vendors, the Government states that it has not been possible to confirm this complaint. The Government points out that the police periodically dislodge and clear out of the central streets of the city of Santiago a group of itinerant vendors who set themselves up in the roadway and obstruct passers-by, because these itinerant vendors hold no municipal permit or licence and pay no taxes and because the goods they offer for sale are faulty and harmful to the health and hygiene of the population. For these reasons the police expel them from the central area of the city.
11. 175. With reference to the alleged violent suppression of the demonstration called by the National Trade Union Co-ordinating Body, the Government states that this complaint cannot be answered because the exact date and place of the occurrence and the names of the persons presumed to have been arrested are not given. With regard to the presumed detention of persons, the Government states in general terms that, in the exercise of the inalienable duty that vests in every authority in any country to maintain public order, the police are empowered to arrest any persons who on the public highway, in defiance of laws and regulations, proceed to perform acts and deeds which may constitute some offence or punishable act.
    • (c) The Committee's conclusions 176. The Committee observes that, with reference to two of the allegations, the Government states that the complainants have not furnished enough information. The Committee likewise notes that, according to the Government, the Administration at Rancagua withheld permission for marches preparatory to an action proposed by the Workers' Provincial Command of Cachapoal owing to the problems they would create for pedestrian and vehicular traffic. Lastly the Committee observes that the Government has been unable to confirm the alleged oppression of street vendors in the centre of Santiago, although it states that these workers are periodically expelled from the central area by the police for non-compliance with the administrative rules concerning safety, hygiene, taxes, etc. In these circumstances the Committee reiterates in general terms that trade union rights include the right to organise public demonstrations. Although the prohibition of demonstrations on the public highway in the busiest parts of a city, when it is feared that disturbances might occur, does not constitute an infringement of trade union rights, the authorities should strive to reach agreement with the organisers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances.
12. 4. Allegations concerning violations of the internal autonomy of trade union organisations
    • (a) The complainant's allegations 177. The complainant organisation makes the following allegations: - In June 1983 the Provincial Inspectorate of Labour at Santiago removed Ricardo Lecaros, the Vice-President of the Metallurgical Confederation (CONSTRAMET), from office for having been tried under the Act on the Internal Security of the State. - In October 1983 the Provincial Directorate of Labour at Rancagua prevented Rodemil Aranda and Marcos Molina, the present leaders, whose dismissal is under review by the courts, from standing for election in the Caletones Industrial Trade Union. The same Provincial Directorate also suspended the record of the election held in the Caletones Industrial Trade Union. - In October 1983 the Provincial Director of Labour at Rancagua requisitioned the record books of the Caletones Industrial and Professional Trade Unions and the Sewel y Minas Industrial and Professional Trade Unions in order to place them at the disposal of the undertaking for use in support of its case in the proceedings against Rodolfo Seguel.
    • (b) The Government's reply 178. The Government states that Mr. Lecaros was sentenced for incitement to illegal paralysis of national activities, an offence defined in the State Security Act. This meant that he did not meet the legal requirements for appointment as a trade union leader, since section 21 of Legislative Decree No. 2756 on the organisation of trade unions requires inter alia that in order to be a trade union leader he should "not have been sentenced for a crime or an offence punishable by a severe penalty or for an offence relating to the administration of trade union property, or be currently accused of one". In these circumstances Mr. Lecaros was disqualified for the performance of trade union functions.
13. 179. The Government adds that, in virtue of the aforementioned law, a person placed under a disqualification by decision of the Directorate of Labour may appeal to the courts within a time-limit of five days. According to the Government, the information furnished in the complaint is insufficient and it is necessary to know in what court and on what date the person concerned appealed against the order of disqualification, so that more information may be supplied.
14. 180. With reference to the allegations concerning Mr. Rodemil Aranda and Mr. Marcos Molina, the Government states that these workers could not stand for election as trade union leaders because they were not workers of the undertaking and proceedings brought by the same persons were pending before the Second Court at Rancagua petitioning that the measure discontinuing their contracts of employment adopted by the "El Teniente" Division of CODELCO-Chile should be declared null and void.
15. 181. With reference to the suspension of the record of the election held in the Caletones Industrial Trade Union, the Government states that the labour inspectors, in their capacity as authenticating officers, were checking the election on the premises of the trade union when they were notified of a decision of the Court of Appeals at Rancagua directing that the election record should be suspended for such time as the proceedings against three leaders were pending. The election eventually took effect on 29 January 1984 after this had been authorised by the Court of Appeals at Rancagua.
16. 182. Furthermore the Government states that it is not true that the record books of the Caletones Industrial and Professional Trade Unions and the Sewel y Minas Industrial and Professional Trade Unions were requisitioned. In reality the labour inspector placed a copy of the Unions' records at the disposal of the court for use as evidence in the interests of a better decision in the proceedings.
    • (c) The Committee's conclusions 183. The Committee takes note that, according to the Government, the record books of the Caletones and Sewel y Minas Industrial and Professional Trade Unions were not requisitioned but that the labour inspector placed a copy of their records at the court's disposal for use as evidence in the interests of a better decision in the proceedings against the leader Rodolfo Seguel.
17. 184. The Committee observes that the other facts alleged arose as a result of failure to meet the requirements laid down by law for appointment as a trade union leader. One case concerns the disqualification of a trade union leader who was sentenced for illegally paralysing national activities; in another case two leaders could not stand for election because they were not workers of the undertaking, and in a third case the judicial authority ordered the trade union elections suspended for such time as proceedings were pending against three leaders. The Committee wishes to point out in this connection that, when national legislation provides that all trade union leaders shall belong to the occupation in respect of which the organisation carries on its activities, the principles of freedom of association may be impaired. In fact, in such cases, the dismissal of a worker who is a trade union leader may, by causing him to lose his status as a trade union officer, infringe the freedom of activity of the organisation and its right to elect representatives in freedom, and may even leave the way open for acts of interference by the employer (see Freedom of Association and Collective Bargaining, General Survey by the Committee of Experts, Report III (Part 4 B), ILC, 69th Session, 1983, para. 158). Similarly, a law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association, when the activity condemned is not prejudicial to exercising trade union office with integrity.
18. 5. Allegations concerning raids on trade union premises
    • (a) The complainant's allegations
19. 185. The complainant organisation makes the following allegations: - Arturo Martínez, the President of the National Graphic Confederation, made an early application for amparo (enforcement of constitutional rights) on 13 June 1983 as a result of a visit which carabineros paid to the Confederation's headquarters, without producing a judicial warrant, for the purpose of questioning the caretaker about the activities carried on by that leader. - In June 1983 the headquarters of the National Federation of Petroleum Trade Unions at Santiago was raided. - In November 1983 carabineros made an illegal and violent raid on the headquarters of the Independent Building Workers' Trade Union No. 2 of Maipú while the members and their families were holding a celebration there. Gerardo Rodréguez, a member of the Union, was arrested in the raid and later released without charges. The carabineros threatened to interrupt any other activity of the trade union in the same way. - In March 1984 a group of five persons armed with bludgeons and chains made a night attack on the headquarters of the National Association of Public Employees (ANEF). This was the third attack on the headquarters.
    • (b) The Government's reply 186. The Government states that it fails to see what connection the facts alleged concerning the National Graphic Confederation can have with freedom of association. According to the Government, the fact that the person presumed to be affected - who has never been arrested - has made an early application to the courts for amparo shows that his rights are being properly protected.
20. 187. With reference to the alleged raid on the headquarters of the National Federation of Petroleum Trade Unions, the Government states that it has no information as to its having happened, and notes that there is no indication as to who made the search, or why.
21. 188. With reference to the alleged raid on the headquarters of the Independent Building Workers' Trade Union No. 2 of Maipú, the Government states that this trade union applied to the Court of Appeals at Santiago for protection. On 9 December 1983 the Court ruled denying the application. Those concerned lodged an appeal with the Supreme Court, which also rejected it, and the dossier was accordingly closed.
22. 189. With reference to the alleged night attack on the headquarters of the ANEF, the Government states that this is "purely a police matter outside the Government's control". In order to provide more information it would have been necessary to know the date and, if applicable, the court before which the charge was laid.
    • (c) The Committee's conclusions 190. The Committee takes note of the Government's reply that it has no information concerning the alleged raid on the National Federation of Petroleum Trade Unions and that the Supreme Court rejected the appeal lodged in connection with the alleged raid on the headquarters of the Independent Building Workers' Trade Union No. 2 of Maipú.
23. 191. The Committee observes, on the other hand, that the Government has not expressly denied that the visit paid by carabineros to the headquarters of the National Graphic Confederation was effected without producing a judicial warrant, and that it has confirmed that an application was made to the court in that connection.
24. 192. In these circumstances, although it observes that neither the complainant nor the Government has furnished sufficiently detailed information, the Committee reiterates the principle that the right of the inviolability of union premises also necessarily implies that the public authorities cannot enter such premises without prior authorisation or without having obtained a legal warrant to do so (see for example 230th Report, Case No. 1200 (Chile), para. 610, and 238th Report, Case No. 1169 (Nicaragua), para. 227).
25. 6. Allegations concerning acts of anti-trade union discrimination
    • (a) The complainant's allegations 193. The complainant organisation makes the following allegations: - In July 1983 the firm of Vercovich Ltda. took reprisals against the workers who had participated in a legal strike, and the workers were unable to induce the competent authority to correct the situation. Twenty-five per cent of the workers involved in the collective bargaining were dismissed and the wages of the remainder were arbitrarily reduced. - In August 1983 eight leaders of the Industria Hucke at Valparaiso were dismissed from that undertaking in virtue of section 13, clause (f), of Legislative Decree No. 2200 under which staff may be dismissed if the undertaking's needs so dictate. The leaders affected were: Luis Palma Romero, José Márquez, Carlos Carreño Castro, Oscar Bonilla, Manuel Cárdenas, Pedro Cortés Fredes, José Villalón Tapia and Santiago Rubio Sepúlveda. - In September 1983 the City Hotel threatened to dismiss workers who did not give up the trade union and actually dismissed two workers without the competent authority intervening to correct that situation. - The Hotel Carrera dismissed Juana Santos, chief telephone operator, for her prominent participation in a legal strike. - Abraham Santángel was dismissed 48 hours after being elected President of Industria Hucke Trade Union No. 1. - In November 1983 the Empresa Nacional del Carbón (ENACAR) dismissed the trade union leaders of Schwager Trade Union No. 5: Luis Badilla, Víctor Jaramillo and Juan Flores. Furthermore the Union was dissolved by court order. - In December 1983 the Hotel Galeréas dismissed 12 persons on the pretext of staff cuts, while at the same time offering pay improvements to all who gave up the Union. - In January 1984 the firm of Parro, Alvariño y Céa. dismissed two trade union leaders for presenting draft collective agreements. - The firm of Goodyear dismissed Juan Carlos Martínez, the leader of Trade Union No. 2, in January 1984.
    • (b) The Government's reply 194. With reference to the allegations concerning the firm of Vercovich Ltda., the Government states that it cannot answer these because the necessary information (date, names, etc.) has not been supplied. The Government also reports that there is no record to show that the persons presumed to have been affected have made use of the statutory remedies.
26. 195. With reference to the dismissal of eight trade union leaders from the Industria Hucke at Valparaiso, the Government states that on 10 August 1983 the contracts of the trade union leaders of Trade Union No. 1 of the firm of Hucke at Valparaiso (Mr. Carlos Carreño Castro, Mr. Oscar Bonilla, Mr. Luis Palma Romero, Mr. José Marquez and Mr. Manuel Cárdenas) were terminated by agreement; these persons signed discharges before the Labour Inspectorate stating that the employer owed them nothing and that they had no complaint to make. The leaders of Trade Union No. 2 (Mr. Pedro Cortés Fredes, Mr. Santiago Rubio Sepúlveda and Mr. José Villalón Tapia) were dismissed and proceeded to lay before the courts judicial complaints against the undertaking. The Labour Inspectorate at Valparaiso applied to the firm an administrative fine of 20 Development Units in cash on 12 August 1983.
27. 196. With reference to the allegations concerning the City Hotel, the Government states that this firm has reported that the trade union is fully operative and its leadership is functioning.
28. 197. With reference to the dismissal of the trade unionist Juana Santos the Government explains that, during the legal strike called by the workers' trade union at the Hotel Carrera, the firm temporarily engaged a few persons to do the essential jobs needed to keep the hotel in operation. The person mentioned, who holds no trade union office and who was working as a telephonist, sabotaged the use of the telephone equipment by obstructing the work of her temporary replacement, and for this the firm dismissed her. The person concerned complained of the firm to the courts, which sentenced the employer to pay compensation.
29. 198. With reference to the allegations concerning the firm of ENACAR, the Government states that Trade Union No. 5 was declared dissolved for lack of members by a judicial decision dated 2 November 1983. The firm of ENACAR offered each of the union's leaders, Mr. Luis Badilla, Mr. Víctor Jaramillo and Mr. Juan Flores, a post because when they were leaders of the trade union they did no work. However, they did not accept the work which the firm offered them and their contracts were withdrawn from them on 25 November 1983.
30. 199. With reference to the dismissal of workers of the Hotel Galeréas, the Government states that these dismissals were due to economic mismanagement of the undertaking. It is not true that workers were dismissed to induce them to give up the trade union. The fact of the matter was that four persons were dismissed at that time for reasons of expense, and that this did not affect the existence of the trade union at all.
31. 200. With reference to the allegations concerning the firm of Parro, the Government states that the two persons dismissed as reported in the complaint were dismissed before the collective bargaining session, so that when the draft collective agreement was presented those persons were not workers of the undertaking. They signed a discharge before the Labour Inspectorate and were paid everything due to them. The collective bargaining was concluded successfully with the signing of a collective agreement for two years ending in January 1986.
32. 201. With reference to the firm of Goodyear, the Government states that Mr. Juan Carlos Martínez was President of Operatives' Trade Union No. 1 and that when he was dismissed he was not a trade union leader. In 1982 proceedings were taken to remove him from office on the grounds that he had misappropriated money intended for the maintenance of the ambulance and for staff recreational activities. The court removed him from office and the Court of Appeals confirmed the removal.
    • (c) The Committee's conclusions 202. The Committee takes note that the Government states that it cannot answer the allegations concerning dismissals from the firm of Vercovich because the complainant organisation has not supplied sufficient information. The Committee takes note further that, according to the Government, the three leaders of the firm of ENACAR to whom the complainant refers did not accept an offer of work in the undertaking and that five trade union leaders of the Hucke Company at Valparaiso terminated their contracts by agreement with the undertaking. The Committee also notes that, according to the Government, the dismissals that took place in the Hotel Galeréas were only four in number, did not affect the existence of the trade union at all and were due to economic mismanagement of the undertaking. Lastly the Committee notes that, according to the Government, the persons dismissed from the firm of Parro were dismissed before the draft collective agreement was presented and that Juan Carlos Marténez (of the firm of Goodyear) was not a trade union leader when he was dismissed because the judicial authority had removed him from office for misappropriation of funds.
33. 203. The Committee observes, on the other hand, that the legitimacy of other cases of dismissal alleged by the complainant has not been substantiated by the Government: namely, the dismissal of Abraham Santángel (which is said to have taken place 48 hours after his election as President of Industria Hucke Trade Union No. 1) and the two alleged dismissals from the City Hotel. The Government acknowledges, on the other hand, that the Labour Inspectorate of Valparaiso applied an administrative fine to the Hucke Company because of the dismissal of three leaders of Trade Union No. 2 and that in the case of the dismissal of the trade unionist Juana Santos the courts sentenced the Hotel Carrera to pay compensation.
34. 204. In these circumstances, the Committee draws the Government's attention to the principle that no worker should be subjected to discrimination in employment on the grounds of his trade union membership or activity, whether past or present (see, for example, 235th Report, Cases Nos. 997, 999 and 1029 (Turkey), para. 38). In this connection the Committee has indicated on previous occasions that one way of protecting trade union leaders is to provide that they cannot be dismissed either during the performance of their duties or for a certain period of time after the expiry of their mandate except, of course, where a serious offence has been committed (see, for example, 2l7th Report, Case No. 1063 (Costa Rica), para. 151).
35. 7. Other allegations
    • (a) The complainant's allegations 205. The complainant organisation makes the following allegations: - In August 1983 Rodolfo Seguel was prevented from leaving the country to attend the Congress of the International Confederation of Free Trade Unions (ICFTU). The ban was imposed by Judge Hernán Cereceda. - In October 1983 the Military Junta approved an Act under which the liability for any act of violence perpetrated on the occasion of public protests or demonstrations automatically vests in those who call for such acts. The Act provides penalties of imprisonment, restricted residence or exile. It is perfectly obvious that this Act is directed specifically against the National Command of Workers and any other dissident organisation which calls for the expression of opposition to the regime. - In January 1984 the Chuquicamata Mining Division prevented Rodolfo Seguel, the President of the Confederation of Copper Workers, from entering that mine. - The workers of the Minimum Employment Programme (PEM) and the Employment Programme for Heads of Households (POJH) do not enjoy the right to organise themselves in trade unions and to present petitions.
    • (b) The Government's reply 206. The Government states that the Code of Penal Procedure allows a judge who is trying a person for the presumed commission of an offence to fix bail for him on condition that he does not leave the country and thus flout the course of justice. The courts and judges are entirely independent in administering justice in Chile. Consequently the fact that Mr. Hernán Cereceda Bravo, Judge of the Court of Appeals at Santiago, has forbidden Mr. Rodolfo Seguel to leave the country is a matter within his sole jurisdiction.
36. 207. The Government also states that the allegation that Mr. Rodolfo Seguel, the trade union leader, was prevented from entering the Chuquicamata Mining Division could not be verified owing to the vagueness of the information supplied. There is no indication of the exact date, the place of occurrence, the authority which denied him entry, etc., particulars which are needed for a conclusive reply.
37. 208. Furthermore the Government states that the Act objected to by the complainant is Act No. 18256, published in the Diario Oficial of 27 October 1983, which made some changes in Act No. 12927 of 1958 on State Security. The purpose of the Act in question is to punish those who promote or incite to demonstrations designed to disturb public order, incite demonstrations designed to overthrow the constituted Government, incite demonstrations designed to paralyse the country or promote a breach of order and public peace. The Act does not punish protest or public expression of opinion in opposition to the economic, social security or housing policy of the Government. The offence defined by this Act consists not in "protesting" but in promoting or inciting acts which violate the public peace. The text reads verbatim as follows: "(i) Any person who, without permission, promotes or calls for collective public acts in streets, squares and other places in public use and who promotes or incites demonstrations of any other kind that allow or facilitate a breach of the public peace." These offences are to be punishable by penalties of rigorous imprisonment, restricted residence or exile for the medium term in any of its degrees, i.e. deprivation of liberty for not less than 61 days and not more than five years. Without prejudice to the foregoing, the perpetrators of these offences will be jointly and severally liable for any damage caused by reason or on the occasion of the aforementioned acts, irrespective of such liability also laying with the material perpetrators of those acts.
38. 209. The Government adds that there is not the slightest doubt that there is a relationship of cause and effect between a "protest call" of the kind defined by the Act and the consequences that may arise from it. Since May 1983, when the first "protests" began, they have steadily grown more violent and have accounted for a great many dead and injured. Those who "call for protests" cannot be ignorant of the consequences those calls will have. The judge who investigates the facts will weigh the evidence and the judgement in these proceedings conscientiously as provided by section 27 of the State Security Act.
39. 210. Lastly the Government states that PEM and POJH are a form of unemployment benefit, and that their beneficiaries consequently cannot organise themselves in trade unions. The right to organise in Chile, as under all the systems of legislation in the world, vests only in workers who have an employment relationship with their employer.
    • (c) The Committee's conclusions 211. The Committee takes note that, according to the Government, the prohibition on leaving the country which was imposed on Mr. Rodolfo Seguel, the trade union leader, was ordered by a judge of the Court of Appeals in virtue of the Code of Penal Procedure which allows a person sub judice for the presumed commission of an offence to be prevented from leaving the country. The Committee also notes that the Government states that, for lack of information and details from the complainant, it has been unable to verify the allegation that Mr. Rodolfo Seguel, the trade union leader, was prevented from entering the Chuquicamata Mining Division.
40. 212. With reference to Act No. 18256, published in the Diario Oficial of 27 October 1983, which punishes "any person who, without permission, promotes or calls for collective public acts in streets, squares and other places in public use and who promotes or incites demonstrations of any other kind that allow or facilitate a breach of the public peace", the Committee wishes to point out in this connection that the requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association. The maintenance of public order is not incompatible with the right to hold demonstrations so long as the authorities responsible for public order reach agreement with the organisers of a demonstration concerning the place where it will be held and the manner in which it will take place.
41. 213. Lastly, with reference to the denial to the workers of the Minimum Employment Programme (PEM) and the Employment Programme for Heads of Households (POJH) of the right to organise themselves in trade unions and to present petitions, the Committee takes note that, according to the Government, PEM and POJH are a form of unemployment benefit, with the result that their beneficiaries cannot organise because in Chile the right to organise vests only in workers who have an employment relationship with their employer. In this connection, the Committee points out to the Government that, in virtue of the principles of freedom of association, all workers - with the sole exception of members of the armed forces and police - should have the right to establish and to join organisations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship with an employer, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions and who should nevertheless enjoy the right to organise. Consequently the Committee requests the Government to take measures with a view to recognising the right of the workers of PEM and POJH to organise.
42. 214. Lastly the complainant organisation presents a series of allegations which have already been examined by the Committee in connection with other cases, or which do not relate to specific breaches of freedom of association.