Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 309, Mars 1998

1. 56. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU), dated 6 November 1997.
2. 57. The Government sent observations in a letter of 4 February 1998.
3. 58. 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. The complainant's allegations

1. 59. In its communication dated 6 November 1997, the International Confederation of Free Trade Unions (ICFTU) alleges that on 29 July 1997 the electricity company Rhona S.A. unilaterally terminated the contract of employment that it had with Mr. Eduardo Araos Herrera, Secretary of the Rhona S.A. National Union and Treasurer of the Metal Workers' Federation (FETEM). According to the ICFTU, this dismissal constitutes a serious violation of the provisions regarding workers' immunity established in the labour law of Chile and, consequently, the relevant trade union organizations instituted legal proceedings with a view to reversing the dismissal; at the same time they submitted a complaint to the labour administration in order to gain the union leader's reinstatement. Nevertheless, the judicial bodies and administrative authorities were overruled by the defiant attitude of Rhona S.A. officials who refused to implement the decisions taken by the National Labour Office which called for the reinstatement of the unfairly dismissed union leader. The ICFTU also alleges that Messrs. Sergio Cea Valenzuela, Sergio Silva Pérez and Jorge Muñoz Llanos, trade union leaders in Brink's of Chile, were unjustly dismissed -- despite trade union immunity -- on account of their action to establish a trade union within their company.
2. 60. Moreover, the ICFTU alleges that when the Confederation of Bank Employees' Trade Unions organized a day of protest on 13 May 1997 in the Senate of the Republic as a show of that sector's disagreement with the Bill seeking to extend workdays to Saturdays, Sundays and public holidays, the workers were forcibly removed and, subsequently, Luis Pereira, Nicolás Soto and Luis Mesina, trade union leaders, were detained. These leaders were then released; however, the Senate initiated unprecedented criminal action against them on grounds of "contempt of authority"; they are thus currently the subject of judicial proceedings despite the repeated calls by trade unions and social organizations for the charges to be dropped.

B. The Government's reply

1. 61. In its letter of 4 February 1998, the Government states that Mr. Eduardo Araos Herrera, leader of the Rhona S.A. union and of the Metal Workers' Federation (FETEM), was indeed dismissed by his employer without the relevant tribunal's prior authorization having been obtained, as stipulated by article 174 of the Labour Code. The employer justified the dismissal by stating that on the date of termination the worker was not a trade union leader. Officials of the labour inspectorate of Viña del Mar visited Rhona S.A. and instructed the employer to reinstate the worker and to fulfil all contractual obligations. Nevertheless, the company did not comply with the labour inspectors' instructions and declined to reinstate the worker. Given the circumstances, the trade union leader took the case to the competent labour tribunal, seeking the reversal of his dismissal and, therefore, reinstatement in the company. The case is at present before the Labour Tribunal of Viña del Mar.
2. 62. With regard to the dismissal of Messrs. Sergio Cea Valenzuela, Sergio Silva Pérez and Jorge Muñoz Llanos, leaders of the Union of Employees of Brink's of Chile, V Region, the Government indicates that the said union was established on 10 May 1996 and elected the aforementioned leaders. The company refused to accredit them and proceeded to dismiss them. The Government adds that, in view of the fact that these workers enjoy trade union immunity and that the company had not obtained the competent labour tribunal's prior authorization of dismissal, the Labour Inspectorate of Viña del Mar visited Brink's of Chile, V Region, and instructed it to reinstate these workers. The company did not comply with the labour inspectors' instructions; the inspectorate subsequently imposed money fines. Given this situation, the workers instituted judicial proceedings on grounds of "anti-trade union practices" before the Labour Tribunal of Viña del Mar. The case was declared receivable and a judgement was passed in their favour on 27 September 1997. However, the company appealed to the High Court (Court of Appeal) which declared the former judgement null and void and ordered postponement of the proceedings for the purposes of preliminary investigation as requested by the company. The case is at present under examination before the First Labour Tribunal of Valparaíso.
3. 63. The Government indicates that the Labour Office, as well as the labour inspectorate attached to it, have no legal powers to enforce its decisions. Their powers permit them only to apply money fines. It is labour tribunals which are competent, following regular legal proceedings heard by them, to order the reinstatement of dismissed workers enjoying trade union immunity.
4. 64. In connection with the detention and prosecution for "contempt of authority" of leaders of the Confederation of Bank Employees' Trade Unions, Messrs. Luis Pereira Concha, Nicolás Soto Reyes and Luis Mesina Marín, the Government states that it consulted the Senate of the Republic (branch of the legislature); its President declared the following on 10 October 1997:
   • -- The Senate of Chile, in keeping with its traditional tolerance of the opinions voiced in debate as well as favouring publicity of its proceedings, admits the presence in its chambers of any person wishing to attend its sessions and to become acquainted with the range of opinion; this rule applies generally and indefinitely with certain exceptions applying to private sessions.
   • -- Presence in the public gallery naturally implies that persons shall refrain from demonstrations: in the event of such action, the presiding member shall exercise his/her powers to maintain order. For that purpose, article 23(3) of the Standing Orders of the Senate empowers him/her to summon the assistance of the police, to order that the galleries be cleared and "to place in court custody the person instigating disorder on any part of the premises".
   • -- The above-mentioned powers ensue from three legal texts, two of which are contained in the Penal Code of Chile, and which have been in force without amendment since 1 March 1875; they term as offences certain forms of conduct affecting the legislative bodies, their committees or senators/parliamentarians. Article 263 provides for punishment of whomsoever, in word or deed, insults any of the legislative bodies or their committees, be it at public meetings attended by them or in the exercise of their various responsibilities. Article 264 states that "whosoever seriously disrupts order at sittings of the legislative bodies or whosoever adopts insulting or threatening behaviour at such meetings towards any parliamentarian or senator" or, similarly, whosoever insults or threatens a senator or parliamentarian in connection with the opinions he/she has voiced in Congress shall be guilty of contempt of authority (first paragraph, Nos. 1 and 3).
   • -- The State Security Act, No. 12927, of 2 August 1958, states in article 6(b), that it is an offence against public order to slander, insult or libel senators or parliamentarians, independently of whether the defamation, insult or libel is associated or not with the exercise of the offended party's functions.
   • -- The same State Security Act stipulates, in article 26, that the judicial body competent to examine the offences addressed, inter alia, by the aforementioned three articles, is the Court of Appeal.
   • -- In order to present the facts prompting the action subsequently instituted by the Senate in the relevant courts, we quote the version given by the Vice-President of the House, the Honourable Senator, Mr. Eugenio Cantuarias, before the judge trying the case:
     • On Tuesday, 13 May 1997, the Senate was sitting in afternoon session with a large attendance in the public gallery. The debate centred on the Bill to amend the General Banks Act, ...
     • During the statements by certain senators, several demonstrations broke out in the public gallery ... there was applause, mockery or insults which prompted me as acting President of the Senate to recall that demonstrations were not permitted. Nevertheless, ... the disruption became so serious that I was obliged to suspend the proceedings in order to allow the police to clear the gallery and, subsequently, to pursue the sitting without further interruption.
     • I must point out to Your Worship that the vocabulary uttered included words ... directed principally at certain senators including ... and that the behaviour designed to interrupt the speakers consisted of the shouting of slogans and the hurling of various objects from the gallery into the Senate Hall ...
     • The police officials (Carabineros de Chile) in attendance on the premises and who cleared the gallery ... identified the main persons responsible for this disruption and the above-mentioned abuse as being Messrs. Nicolás Soto Reyes, Luis Fernando Mesina Marín and Luis Armando Pereira Concha ...
   • -- As can be appreciated, the action instituted by the Senate complies strictly with the relevant legal provisions and regulations; it is aimed solely at protecting its dignity and due respect. No committed defender of the democratic institutions will hesitate to feel objectively concerned by the facts described above, independently of the perpetrators' motives. Consequently, the Senate simply called upon an entirely impartial body, the competent court of law, to investigate the facts and determine whether they constitute any of the aforementioned offences and, in that eventuality, establish the relevant liabilities.
   • -- In respect of the proceedings instituted at the Senate's behest versus the trade union leaders of the Confederation of Bank Employees' Trade Unions, this action is in accordance with Roll No. 863-97 and the case is at present under investigation by a minister of the Court of Appeal of Valparaíso (Civil and Collegiate Court). None of these trade unionists is in detention at this time and enjoy full freedoms.
5. 65. Finally, the Government indicates that any further factors coming to light shall be notified in due course.

C. The Committee's conclusions

1. 66. With regard to the dismissal, despite trade union immunity, of trade union leaders in the Rhona S.A. enterprise (Mr. Araos Herrera) and Brink's (Messrs. Cea Valenzuela, Silva Pérez and Muñoz Llanos), the Committee notes that the labour inspectorate instructed the respective employers to reinstate the above-mentioned workers, that the employers refused to do so and that, consequently, legal action was initiated with a view to the reinstatement of the dismissed persons and that such action is at present sub judice. In this regard, given that Chilean legislation requires prior judicial authorization for the dismissal of trade union leaders and that it was not sought in the present case, the Committee deplores the dismissal of the four trade unionists listed by the complainant and recalls that no one should be the subject of discrimination in employment on account of trade union membership or legitimate union functions and activities. The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1994, para. 749.) In this respect, the Committee urges the Government to take all the necessary measures for the reinstatement in their posts of the four trade unionists listed by the complainant. The Committee requests the Government to keep it informed of the outcome of the current legal action.
2. 67. Regarding the action to clear the Senate chambers and the detention of Luis Pereira, Nicolás Soto and Luis Mesina, trade union leaders, as well as the criminal proceedings instituted against them on "contempt of authority" charges, the Committee has noted that, at present, these three trade union leaders are free and are awaiting the outcome of the court action. The Committee notes that, according to the Government and the report submitted by the President of the Senate, the action to clear the chambers, the detention and the initiation of criminal proceedings against them were due to repeated "gross" insults directed at certain senators during the debate on a Bill as well as due to disorderly behaviour designed to interrupt the speakers, despite warnings issued by the President of the Senate. In this regard, the Committee recalls that, in exercising their freedom of expression and in expressing their opinions, "trade union organizations should respect the limits of propriety and refrain from the use of insulting language" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 152). The Committee requests the Government to keep it informed of the outcome of the current action against these trade union leaders.