Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 335, Novembre 2004

1. 513. The Committee last examined this case at its May-June 2003 meeting and submitted an interim report to the Governing Body [see 331st Report, paras. 181-211, approved by the Governing Body at its 287th Session (June 2003)].
2. 514. The Government sent new observations in communications dated 12 January and 9 February 2004.
3. 515. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 516. At its May-June 2003 meeting, the Committee made the following recommendations on the outstanding issues [see 331st Report, para. 211]:
   • Sopraval S.A.
     • (a) With regard to the allegations of acts of intimidation and violence by the police during a gathering of striking workers outside the company’s buildings on 1 and 2 May 2000 (resulting in workers being injured and detained), the Committee requests the Government to send it the report which the Governor of the Province promised to request and to ensure that investigations begin into the allegations and, if appropriate, that the sanctions provided for in legislation are applied.
     • (b) With regard to allegations relating to company interference in holding a meeting to vote for censure of the union leadership, the Committee requests the Government and the complainant organization to keep it informed of the final decision of the judicial authority in this respect.
     • (c) With regard to the rest of the allegations of acts which might have been committed on the part of Sopraval S.A. (allegations which are mentioned in the conclusions, final paragraph of the section on the company in question), the Committee requests the Government to send its observations in this respect and inform it as to whether the judicial proceedings for anti-union practices mentioned generally in its reply refer to any of the pending allegations [the text of the paragraph reads as follows (see 331st Report, para. 203):
   • Finally, the Committee regrets that the Government has not sent its observations on the rest of the allegations of acts which might have been committed on the part of Sopraval S.A. and which follow: (1) in May 1999 it offered maintenance workers a pay rise if they resigned from the union, which led to the resignation of all members in that sector; (2) in July 1999 it dismissed Mr. José Figueroa for standing as a union officer; (3) in August 1999 six workers were dismissed from the rendering section for joining the union; (4) in August 1999 the company obstructed the awarding of union permits, it has not deducted 0.75 per cent from the salary of workers benefiting from the collective contract, and it has announced that it will not make deductions from union loans to workers, thus causing financial damage to the union; (5) on 14 September 1999 the company dismissed 23 workers who were union members on the grounds of the needs of the company; (6) in October 1999 it put pressure on workers – some union members, some not – to accept a collective agreement with a 50 per cent pay cut and also offered loans to workers who would resign from the union; (7) in November 1999 it dismissed 60 union members who had participated in a protest in the Senate against the law on severance pay related to years of service; (8) in January 2000, 11 union members were shut in and forced to sign union resignations; (9) the president of the union, Mr. Orellana Ramírez, was threatened with death during the strike which began on 1 May; (10) after the strike the company began a judicial process against Mr. Orellana Ramírez in order to lift his trade union immunity and dismiss him and as of May 2000 ceased to pay his salary, also withholding the documents necessary for payment of sick leave. In these circumstances, the Committee requests the Government to send its observations in this respect and inform it as to whether the judicial proceedings for anti-union practices mentioned generally in its reply refer to any of the pending allegations.]
   • Cecinas San Jorge S.A.
     • (d) With regard to the company’s alleged promotion of a union, the Committee requests the Government to take measures to ensure that such acts are not repeated in the future, as well as to inform it of the outcome of any legal action which the administrative labour authority brings before the judicial authority.
     • (e) The Committee requests the Government to take measures ensuring that collective negotiation at Cecinas San Jorge S.A. takes place with the workers’ organizations which have been freely formed by the workers, as well as examining the legality of the collective contract with the union which the Government describes as “biased” towards the company.
     • (f) With regard to the allegation relating to the dismissal of Alvaro Zamorano Miranda, president of the Cecinas San Jorge Inter-company Union and the Cecinas San Jorge Company Union, the Committee requests the Government to make renewed efforts with the company to secure the reinstatement of the dismissed union leader and to take measures to avoid the repetition of such acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.
     • (g) The Committee requests the Government to send its observations on the allegations according to which the company dismissed nine union members during negotiations of a collective contract on 25 October 2001 and on 30 October 2001 began slander proceedings against union officer Alvaro Zamorano Miranda for having stated that the company had offered money to workers to resign from the union.
   • Bakery companies
     • (h) With regard to the dismissal, without having previously obtained judicial authorization, of Juan Aros Donoso, officer of the Federation of Breadworkers of the 5th Region and president of the Viña del Mar Inter-company Union of the Bread Industry from the company of Manuel Regueiro, the Committee requests the Government to take measures to investigate whether the dismissal in question took place and, if so, to inform it of the specific facts behind it. The Committee requests the Government to keep it informed in this respect.
   • Electroerosión Japax Chile S.A.
     • (i) With regard to the alleged dismissal of nine workers enjoying union protection between 3 and 8 July 2002, during the start of the process of negotiating a folder of petitions, the Committee requests the Government to send it a copy of the final judicial ruling on these dismissals.

B. New reply from the Government

1. 517. In its communications of 12 January and 9 February 2004, the Government states, with regard to the allegations relating to the Sopraval S.A. company, that it had already sent a reply in the framework of a request for intervention to the ILO by an international trade union organization that is not a complainant in the present case. The Government sent this reply in an annex which can be summarized as follows:
   • – With regard to the hostile behaviour and threats to freedom of association, the labour inspector who contributed to the examination of the complaint interviewed the new officials of the trade union of the Sopraval S.A. company, Cristián Feliú Briones, secretary of the company’s trade union, and Leonardo Saldaño Orrego, president of the company’s trade union since 5 January 2001. The latter indicated that they had no proof of the events having taken place. In accordance with article 292 of the Labour Code, the labour courts of the first instance are responsible for hearing and deciding violations through anti-union acts. The labour services have been informed that the La Calera Court of Letters is hearing a complaint of anti-union practices in Case No. 10.972-2000, which covers non-payment of trade union dues deducted by the company, the alleged harassment and dismissal of Nelson Orellana Ramírez, the payment of his wages since May 2002 and not providing work clothing as laid down in the collective contract, etc. There are currently two legal proceedings for anti-union practices awaiting decision.
   • – With regard to the allegations relating to the interference by the Sopraval S.A. company in holding a meeting to vote for censure of the union leadership, the Government states that on 11 December 2000 the vote of censure of the union leadership of the “Sergio Pincheira” trade union of the Sopraval S.A. company took place before the Public Notary Moisés Corvalán Vera, with the participation of 57 members, 53 of whom approved the censure and four of whom rejected it. The union leadership thus censured comprised Nelson Alejandro Orellana Ramírez (president), Cristián Rodrigo Feliú Briones (secretary) and Germán Fernando Toro Muñoz (treasurer). On 5 January 2001, the new executive committee of the Sopraval S.A. company trade union “Sergio Pincheira” was elected, before the deputy secretary who is a lawyer of the Municipality of La Calera, Mr. Jorge Héctor Torres Jaña, acting as a public notary. The new executive committee comprised Heiter Leonardo Saldaño Orrego (president), Juan Olmos Fuenzalida (secretary) and Pedro Tapia Céspedes (treasurer).
   • – With regard to the allegations of acts of intimidation and violence by the police during a gathering of striking workers outside the Sopraval S.A. company’s buildings (resulting in workers being injured and detained) on 1 and 2 May 2002, the Government indicates that the regional labour directorates must respect Service Order No. 7 of 1996, which aims to prevent the occurrence of events such as those figuring in the complaint in labour conflicts and strikes and to reconcile the right of workers to express themselves with maintaining public order and social harmony so that the workers may freely exercise their rights without being harassed or prevented from expressing their opinions by any state institution. Given that article 292 of the Labour Code lays down that the labour courts are competent to hear and decide violations through anti-union practices, if the Labour Services were to define certain acts as being anti-union in nature they would be superseding their powers. The Labour Services must act within the legal powers that the legislation in force grants them and it would be unconstitutional to go beyond these, in accordance with article 7 of the Political Constitution of the Republic, which lays down that: “the state bodies shall act through regular investiture of its members, within their competency and in the manner laid down in law”. The role of the Labour Services is to inform the courts when it is required to do so with regard to the stated facts.
2. 518. With regard to the dismissal of trade union official Alvaro Zamorano Miranda on 22 October 2001, the Government states that this is related to the establishment of a parallel trade union with the backing of the Cecinas San Jorge company (an issue already examined by the Committee in its previous examination of the case); the Labour Inspectorate fined the company 10 months’ minimum salary and requested the company to reinstate the union officer in question on 5 December 2001, without success. The Government states that the reports issued on these matters by the Communal Labour Inspectorate of Santiago Poniente are currently being revised for their possible lodging in a complaint before the ordinary courts.
3. 519. With regard to the alleged dismissal of Juan Aros Donoso, president of the Viña del Mar Inter-company Union of the Bread Industry, the Government repeats its statement that there has been no complaint in this respect.
4. 520. With regard to the dismissal of nine workers enjoying trade union immunity from the Electroerosión Japax Chile S.A. company, the Government, after recalling that the Ministry of Labour had fined the company, states that the two proceedings (one of which was begun by the Ministry of Labour) took place in two courts: in one case (that begun by the Ministry) the court ordered the reinstatement of the workers dismissed (which the enterprise refused to do), and in the other (initiated by the executive committee of the trade union) the court must decide on the issue of litispendence arising from the fact that the case was being heard by another court at the same time; in any case, and if the decision of this court rejects the complaint for anti-union practices, there is always the possibility of appeal.

C. The Committee’s conclusions

• Sopraval S.A.
  521. 521 The Committee notes the Government’s statement and, in particular, the fact that two legal proceedings for anti-union practices are pending. The Committee requests the Government to keep it informed of the decisions handed down with regard to the allegations relating to 2000 (threats to freedom of association of the members of the trade union, harassment and dismissal of the former trade union official, Nelson Orellana, interference by the company in a vote of censure of the previous executive committee of the trade union – even though, as the Government reiterates, the former executive committee presided over by Mr. Nelson Orellana was dismissed following the vote of censure by 53 members in favour to four against).
  522. 522 With regard to the allegations relating to 1999, the Committee notes the Government’s statement that it falls within the powers of the labour tribunals (and not the Ministry of Labour) to hear and decide issues relating to violations through anti-union practices. The Committee points out to the complainant organization that it is incumbent upon it, if it so wishes, to file complaints before the labour court concerning the anti-union practices committed in 1999, if it has not already done so.
  523. 523 With regard to the allegations of acts of violence that remain outstanding, although the Committee notes the Government’s statements on Service Order No. 7 of 1996, issued by the Labour Directorate on the actions of the police in labour conflicts and strikes in order to allow workers freedom of expression and the right to protest, it must point out that the Government’s reply does not specifically answer the previous recommendation of the Committee. Consequently, the Committee must repeat its previous recommendation in which, with regard to the allegations of acts of intimidation and violence by the police during a gathering of striking workers outside the company’s buildings (resulting in workers being injured and detained) on 1 and 2 May 2000, it requests the Government to send the report which it promised to request from the Governor of the Province without delay and to ensure that investigations begin into the allegations and, if appropriate, that the sanctions provided for in legislation are applied.
• Cecinas San Jorge S.A.
  524. 524 The Committee notes that the Labour Inspectorate fined the company (10 months’ minimum salary) as a result of the dismissal of trade union official Alvaro Zamorano Miranda, and that the company refused to reinstate this trade union official when the Labour Inspectorate requested this. The Committee notes that the Ministry of Labour is revising the reports of the Labour Inspectorate so that they might be submitted in a complaint before the judicial authorities and it requests the Government to keep it informed of any new administrative or judicial decision taken in this case and it expects that the trade union official will be reinstated in his post very soon.
  525. 525 The Committee regrets to note that the Government has not sent its observations on the other allegations that the company began slander proceedings against union officer Alvaro Zamorano Miranda for having stated that the company had offered money to workers to resign from the union. In this respect, the Committee requests the Government to keep it informed of any judicial decision in this respect, and of any administrative or judicial decision on the alleged promotion by the company of a trade union.
• Electroerosión Japax Chile S.A.
  526. 526 The Committee notes, with regard to the dismissal of nine workers enjoying trade union protection (for which the Ministry of Labour fined the company and laid a complaint before the judicial authorities), that according to what can be taken from the Government’s statements there has still been no final decision on this matter and it requests the Government to keep it informed in this respect.
• Bakery companies
  527. 527 The Committee notes the Government’s statement that there has been no complaint laid with regard to the alleged dismissal of trade union official Juan Aros Donoso and, given that the Government states that it is the responsibility of the judicial authorities to decide issues relating to violations through anti-union practices, it points out to the trade union concerned that it is incumbent upon it, if it so wishes, to file a complaint with the labour court, if it has not already done so.