Report in which the committee requests to be kept informed of development - Report No 185, June 1978

Case No 823 (Chile) - Complaint date: 12-AUG-75 - Closed

6. The last report submitted by the Government of Chile under article 19 of the ILO Constitution on the measures taken to comply with the recommendations of the Fact-Finding and Conciliation Commission was examined by the Committee and the Governing Body at their November 1977 session.,

1. 6. The last report submitted by the Government of Chile under article 19 of the ILO Constitution on the measures taken to comply with the recommendations of the Fact-Finding and Conciliation Commission was examined by the Committee and the Governing Body at their November 1977 session.,
2. 7. 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).
3. 8. At that session the Governing Body, on the Committee's recommendation, requested the Government to continue to supply information on the evolution of the situation with respect to the recommendations of the Fact-Finding and Conciliation Commission, and to submit a report on this subject by 1 April 1978. The Government supplied this report in a communication dated 27 March 1978. Additional information was provided by the Government in communications dated 13 and 26 April 1978.
4. 9. Following consultations between the Government of Chile and the Director-General it was decided to have recourse to the direct contacts procedure. The Director-General appointed Mr. Luis Segovia, official of the International Labour Standards Department, to represent him on this mission. Interviews were held between 8 and 15 May 1978.
5. 10. In the course of his mission, the representative of the Director-General met with the Minister of Labour and Social Welfare, the Secretary of State and the Adviser for International Affairs of this Ministry. He was also received by the President of the Supreme Court, the Minister for Foreign Affairs and Justice, and the Secretary of State for the interior. He was also able to have interviews with a number of former ministers of labour. In the premises of the trade unions he met workers' leaders who belonged to various trends in the trade union world. Finally, at the headquarters of the Confederation for Production and Commerce he met with the president of this central employers' organisation and with the leaders of affiliated organisations which cover a number of branches of activity including agriculture, commerce and construction.
6. 11. The representative of the Director-General was afforded all the necessary facilities by the authorities. During his interviews with the authorities and with the employers' and workers' leaders great interest was demonstrated by all of them in the direct contacts mission, and they expressed the hope that this mission could make a contribution to the normalisation of the trade union situation in the country. On various occasions, the representative of the Director-General was told of the importance which all attached to the procedures applied by the ILO in trade union matters and especially to the work done by the competent ILO bodies as regards the trade union problems which had arisen in the country.
7. 12. The Committee has examined the evolution of the trade union situation in Chile as well as the questions before it in Case No. 823, taking account of the information supplied by the representative of the Director-General which has been of great use to it in the performance of its task.

A. A. The complainants' allegations

• Question of the adoption of new trade union legislation and trade union activities in the country
  13. 13 The Fact-Finding and Conciliation commission had recommended that the Government adopt without delay new trade union legislation which should recognise, in particular, certain principles concerning the right of workers, without distinction whatsoever, to establish organisations of their own choosing, without previous authorisation; the right of organisations to hold meetings, to elect their representatives in full freedom, and to organise their administration without interference by the authorities, and 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.
  14. 14 In its previous reports, the Government had stated that BOO& II of the draft Labour Code, which deals with trade union organisations, was being examined by the Council of State. The Government further indicated that a report containing a technical appraisal of this part of the Code was due to be submitted to the President of the Republic during the second quarter of 1977.
  15. 15 At its November 1977 session the Governing Body, on the Committee's recommendation, expressed once more its deep concern at the slowness in adopting new trade union legislation and urged the Government to repeal Legislative Decree No. 198, which at present regulates trade union activities, and to promulgate without delay legislation guaranteeing the free exercise of trade union rights.
  16. 16 In its report of 27 March 1978, the Government described the different stages in the process for the institutionalisation of the country's political structures. The next stage will consist in the organisation, in principle in 1979, of a plebiscite whereby the people will be called upon to give their verdict on the new national Constitution. The full text of the preliminary draft of this Constitution was due to be submitted to the Chief of State on 21 May 1978. Thereafter, it will be submitted to the Council of State, which will draw up a report for the Junta. The final draft must be prepared before 31 December 1978. Moreover, the institutionalisation process would run concurrently and parallel with the evolution of other sectors of national life. In the labour sector, for instance, the trend was moving towards new machinery and new systems geared to the country's needs and not, as formerly, subordinate to the particular interests of each party. There also existed in this sector a series of objectives which were materialising as rapidly as circumstances permitted. In this connection, the Government announced its plans for the setting up during the first four months of this year of the Labour Council - a body for the participation of, and communication between the different branches of activity and industrial organisations in the country, composed of representatives of the workers and of the employers in equal numbers and chaired by the Minister of Labour and Social Welfare.
  17. 17 The Government recalled that the new Labour Code, geared to the needs of the times and adapted to the real situation of the country, was in an advanced stage of preparation. It was expected that Book I of the new Code, dealing with individual employment relationships, would be promulgated at the beginning of May. Book II, which dealt with the right to organise, had been submitted for examination to the Council of State, which had expressed its views on it towards the middle of 1977. The Ministry of Labour was at present finalising the text of these provisions.
  18. 18 The Government further stated that trade union life was being carried on actively, with the restrictions inherent in the state of emergency, which were gradually being attenuated. In this connection the Government supplied a long list of meetings and conferences organised by different Chilean trade union organisations since September 1977. The Government also mentioned interviews between the Minister of Labour or the Secretary of State for Labour and certain national Confederations and federations. It also supplied a list of 34 trade unions founded between 1 January 1977 and 31 March 1978.
  19. 19 The representative of the Director-General provided a great deal of information concerning the evolution of the trade union situation. In particular, as regards the draft legislation on trade unions, he indicated that this was still being examined and discussed by the competent state bodies and that the Council of State had heard the views of trade union leaders belonging to various trends. The Government had decided to give priority in the immediate future, and as the next stage, to the question of collective bargaining to which reference is made later in the present report. On 1 May the President of the Republic signed the new law concerning standards relating to labour contracts and to the protection of workers as well as a decree the purpose of which is to set up a labour council, a body which will channel information between workers, employers and the authorities.
  20. 20 The representative of the Director-General also indicated that from the statements published by the various trends of trade union opinion whose leaders he met (leaders of the National Union of Workers of Chile, of the "Group of Ten", the United Workers' Front, and other leaders) as well as various communications which these trends had addressed to the Government, all agree that there is a need to put an end to the restrictions which are presently imposed on the trade union movement. Support was again given to this position in the course of the interviews with the trade union leaders in question who, according to each case, laid stress on the degree of general normalisation that had been reached in the country, the difficult situation that had been imposed on trade union organisations as a result of the measures adopted since 1973, the fact that employers' organisations were not subject to these restrictions, and the discrimination exercised against organisations which have continued to maintain a large measure of independence vis-à-vis the Government. According to the leaders of the "Group of Ten", the labour authorities have, for some time, stopped receiving them or responding to the problems which they put forward. Certain trade union leaders referred to cases, arising for the most part in 1977, in which the authorities had refused authorisation, or had placed obstacles in the way of holding certain trade union meetings. Even now the authorities systematically refused authorisation to certain organisations (for example the FENATEX) and as regards other organisations the reply is delayed. Representatives of the authorities were sometimes present at trade union meetings.
  21. 21 Certain trade union leaders expressed their concern at certain government activities, particularly in the field of trade union education which, in their opinion, were designed to promote trends that were favourable to government policy, especially in sectors where the workers were unorganised or when differences of opinion had appeared within existing organisations.
  22. 22 In any event, stated the representative of the Director-General, there exists a general agreement within the trade union world that it is necessary to authorise trade union elections, to re-establish the practice of collective bargaining and to guarantee by legislation the free functioning of organisations and of their leaders.
  23. 23 For their part the government authorities rejected the allegations that they were developing a trade union "parallelism" or that they were exercising discrimination in the application of the legislation in force. If, in some cases, measures had been taken against certain trade union leaders on the basis of the standards in force and for reasons that were linked to the maintenance of peace and order, the organisations concerned nevertheless continue to function. Several of these cases had been submitted to the appeal courts and the courts were able to reach a decision on the basis of the questions raised. In the public sector the administrative authorities can dismiss leaders when they consider that serious reasons justify the taking of such measures.
  24. 24 The representative of the Director-General stated that, during his mission, statements made by the Minister of Labour were published in the press on 10 May 1978, according to which the Government did not wish trade union leaders to support its policy unconditionally although it did request their collaboration. The minister stated that at the present moment trade union elections could provoke profound divisions between the workers, but that they would take place after the next stage concerning collective bargaining. In the normalisation process by stages the recognition of the right to strike would also be studied. Finally, the Minister made statements according to which the leaders of the "Group of Ten" were recognised as trade union representatives and that he had never failed to receive trade union leaders.
  25. 25 The Committee notes the information provided by the Government in its report, as well as the information gathered by the representative of the Director-General. It notes in particular that the promulgation of new trade union legislation which is still being studied is envisaged in a process of evolution of which the first stage will be the adoption of a new system of collective bargaining. Until this new legislation on trade unions has been adopted the activities of trade unions will remain governed by Decree Law No. 198 and they will continue, as a result, to be subject to important restrictions especially as regards elections and meetings.
  26. 26 While taking note of the developments in the trade union situation and in particular of the Government's intention to restore collective bargaining, the Committee must point out that a truly effective system of collective bargaining presupposes the absence of restrictions on the legitimate activities of trade union organisations especially as regards their internal administration. Such a system presupposes, in particular, that trade union organisations should be able freely to call meetings and should be represented in the course of negotiations by leaders who are freely elected by their members.
  27. 27 The Committee considers in these circumstances that one of the priorities of the Government should be to put an end to the restrictions presently in force by repealing the Decree Law No. 198 and by adopting as soon as possible new trade union legislation in conformity with the principles of the ILO and with the recommendations of the Fact-Finding and Conciliation Commission.
• Collective bargaining
  28. 28 The Fact-Finding and Conciliation Commission had expressed the hope that collective bargaining, which was prohibited, would be resumed as soon as possible, and had recommended that in the meantime, as a temporary measure, the Government generalised the setting up of tripartite advisory Committees, composed of representatives freely elected by their organisations, with a view to making improvements in the remuneration resulting from the general automatic adjustments.
  29. 29 In earlier reports the Government had stated that collective bargaining had been suspended until March 1978. According to the Government, this temporary suspension did not mean that voluntary negotiation between workers and employers within an undertaking was forbidden. Such negotiation frequently took place, in addition to the activities carried on by the tripartite Committees. The Government had also referred to the changes made in April and August 1977 in the system of tripartite Committees, whose decisions, it claimed, now had a deliberative character.
  30. 30 The Committee had carefully examined these innovations at its November 1977 session. It noted that the decisions of these Committees might, if they were agreed upon unanimously, and if the Government raised no objections, be given the status of collective labour agreements. For these agreements to become valid, it was necessary, in the first place, for unanimity to be reached within the Committee - i.e. for the government representatives of the Committee to vote in favour - and, in the second place, for there to be no objections on the part of the Government to the decision taken by the Committee. The Committee accordingly observed that the newly adopted provisions in no way dispensed with the need for government approval. It recalled in this connection that the need for "prior approval" of collective agreements by the authorities was contrary to the whole system of voluntary negotiation. In consequence, the Governing Body, on the Committee's recommendation, requested the Government to provide information on the functioning of the tripartite Committees and on the measures it proposed to take to ensure greater freedom in collective bargaining.
  31. 31 In its report the Government states that the country's economic situation has considerably improved. Nevertheless, conditions are not yet suitable for the re-establishment of the normal collective bargaining machinery, which remain suspended until 1 March 1979. The Government further states that a new system of collective bargaining is in an advanced stage of consideration, which further justifies the temporary suspension of the normal procedure. The system of automatically readjusting remuneration at quarterly intervals continues to be applied, as do the provisions of Legislative Decree No. 851 of 1975, which extend the scope of agreements in writing, collective agreements, arbitration awards and tripartite Committee decisions to all workers in the branch of activity concerned. These transitional measures have been adopted in the context of an inflationary process which, thanks to the economic policy followed, has now been contained to a substantial degree without being completely halted. Thus, from 340.7 per cent in 1975 the rate had been decreased to 63.5 per cent in 1977. The forecast for 1978 was of the order of 25 per cent. According to the Government, the rate of inflation could have been reduced even more quickly if the system of automatically readjusting remuneration had not been introduced and maintained, but that would have entailed too heavy a sacrifice for the workers. This solution has been avoided because the fundamental principles of the Government would not allow it to subordinate social development to economic development. The Government has furthermore made an effort to grant supplementary pay adjustments to the lowest income groups.
  32. 32 With regard to the tripartite Committees, the Government refers to the information already supplied in its previous report to the effect that their decisions were now accorded deliberative status. It confirms that it is the task of the government representatives on these Committees to safeguard the general interest by preventing excesses prejudicial to the community. However, the role played by the State will gradually become more and more secondary. The Government also supplies an analysis of the activities of the different tripartite Committees and the decisions they took during the second half of 1977. Most of the decisions of these Committees have been to prescribe pay rates, benefits and conditions of employment in the sector concerned for a period of one year.
  33. 33 As was pointed out by the representative of the Director-General, the Government officially announced on 1 May last that collective bargaining would be restored within the near future. The Minister of Labour pointed out to the representative of the Director-General that restoration of collective bargaining would perhaps take place in 1979 and that the provisions which would require to be taken to this effect were presently being studied. It is foreseen that in case the parties do not reach agreement, either directly or through mediation, recourse would be had to arbitration as a final solution. The arbitrators would be nominated by agreement between the parties or by independent bodies such as the courts.
  34. 34 According to the Minister, negotiation takes place at the moment by discussion within the tripartite Committees which in most cases have reached unanimous agreement. When there has been no agreement the Ministries of Labour and Economy have had to reach a decision after examining the positions of the workers and the employers. As regards the appointment of members, the Minister indicated that these are published in the press and that the organisations which have legal personality may present their own candidates.
  35. 35 The representative of the Director-General took account of the opinions expressed in various trade union quarters concerning these Committees. Some considered that they had no real importance in so far as regards participation or negotiation, since in the present circumstances the worker members are not elected by their rank and file. Others considered that they play a positive role during the transitional stage. For certain employers' leaders the experience had proved useful in so far as the discussions had been centred on purely occupational subjects.
  36. 36 As regards, in particular, the appointment of the members of the Committees, the president of one federation of workers gave the example of his own organisation which had presented a list of candidates. This list was, however, set aside by the authorities who gave preference to the candidates presented by the unions which had withdrawn from the federation. In general, the information gathered showed that the Government appoints trade union leaders who have shown a more favourable attitude with regard to the system of tripartite Committees.
  37. 37 The Committee wishes to recall again that the Fact-Finding and Conciliation Commission had already pointed out as regards the tripartite Committees that these should be composed of representatives duly elected by their organisation. In any case the Government now announces the restoration of collective bargaining. This being so, the Committees constitute a temporary measure as the Fact-Finding and Conciliation commission had recommended.
  38. 38 The Committee notes this development with interest. It must however point out that what seems to be envisaged is that in the absence of an agreement between the parties in the collective bargaining process the dispute which would result would be dealt with by compulsory arbitration. In other words, recourse to strikes would be prohibited. The Committee recalls the recent statement made by the minister of Labour according to which recognition of the right to strike will also be examined within the framework of the process of normalisation. The Committee would recall that the right to strike constitutes one of the essential elements whereby workers and their organisations can promote and defend their occupational interests. While a prohibition of the right to strike may be acceptable during collective bargaining or during the validity of a collective agreement or in the case of public servants or essential services, a general prohibition of the right to strike would be contrary to the principles of freedom of association.
• Problems relating to certain trade union organisations
  39. 39 The Fact-Finding and Conciliation Commission had recommended that the Government normalise the financial situation of the Ranquil Confederation and the United Confederation of Workers and Peasants and make it possible for these Confederations and the organisations affiliated to them to resume their trade union activities.
  40. 40 At its November 1977 session the Governing Body, on the Committee's recommendation, requested the Government for information on the activities of these organisations, particularly as concerns the organisation of national, provincial and local meetings and the representation, if any, of these Confederations on the Tripartite Committee for Agricultural Activities. The Committee also wished to know whether the premises and property of these organisations which had been closed or confiscated had now been returned to them.
  41. 41 In its report the Government states that these two organisations are carrying on their activities normally. It names the members of their executive Committees, elected in both cases before the change of regime. The United Confederation of Workers and Peasants organised in December 1977 a public meeting in Santiago in honour of its sixth anniversary, at which its president had criticised certain aspects of the Government's economic and social policy. The activities of this organisation were carried on from its headquarters, which had not been closed, contrary to the allegations made. The situation is the same in the case of the Ranquil Confederation, which had organised a national meeting at Penco in honour of "Peasants' Day" last December.
  42. 42 A number of leaders from agricultural trade unions explained to the representative of the Director-General that all the federations and Confederations in the sector were in a precarious situation since the repeal of the provisions of the agricultural trade union law (Law No. 16625 of 1967) which provided for certain obligatory contributions to be made by employers' with the object of financing these organisations of a higher degree. It was not found possible to replace the system by another because the first-degree trade unions, if they receive the contributions of the workers by virtue of Decree Law No. 198, cannot take decisions in assemblies such as for example to set up a system of dues for the purpose of financing organisations of a higher degree to which they are affiliated.
  43. 43 In addition, from the information gathered during the direct contacts mission, there is no indication that there has been any change in the position as regards the questions which had been raised, particularly with regard to the Ranquil Confederation and the worker peasant Confederation, Unity.
  44. 44 The Committee must recall the special difficulties which confront the agricultural workers' organisations as regards their functioning. The financial problems they face constitute a major obstacle to the exercise of their legitimate functions for the defence of the interests of the agricultural workers.
  45. 45 In this connection, the Committee wishes to draw to the attention of the Government the principles contained in the Convention (No. 141) and the Recommendation (No. 149) concerning organisations of rural workers adopted in 1975. Not only do these instruments recognise the basic principles of freedom of association to this category of workers but they also provide for the adoption and the application by governments of a policy designed to encourage rural organisation especially with a view to eliminating obstacles which prevent their Constitution, their development and the exercise of their legitimate activity. The object of government policy should be to facilitate the Constitution and the development, on a voluntary basis, of strong and independent organisations with a view to ensuring the participation of rural workers in economic and social development and in the advantages which flow from it.
  46. 46 In view of these considerations, the Committee considers that the Government should in particular adopt appropriate measures with a view to facilitating the financing of federations and Confederations of rural workers and to allow first-degree trade unions to decide freely in their assemblies on the amounts which they wish to make over to those organisations to which they are affiliated.
  47. 47 As regards the National Federation of Textile and Clothing Workers (FENATEX) and the Industrial Federation of Building, Wood and Building Materials Workers (FIEMC), the Fact-Finding and Conciliation Commission had recommended that the Government adopt measures removing the obstacles preventing legal personality being granted to these trade union organisations.
  48. 48 At its November 1977 session the Governing Body, on the Committee's recommendation, requested the Government to indicate whether, despite not having legal personality, these two federations were allowed to collect union dues from their members in the normal manner, particularly under the check-off system.
  49. 49 The Government states in its report that the FIEMC and the FENATEX are in fact continuing to carry on their activities. The Government recalls that legal personality was not granted to these two federations because they did not accomplish the formalities required by law in respect of the Constitution of trade unions. The Government moreover points out that the leaders of these organisations had not sought to obtain legal personality under earlier governments.
  50. 50 Ministry of Labour authorities confirmed these observations to the representative of the Director-General. They added that the FENATEX had requested the grant of legal personality on 13 September 1964, although this organisation had existed for more than 20 years without having benefited from this. This organisation had presented a list of unions affiliated to it of which many did not have legal personality. It had not supplied certain information which had been requested from it. There is at the moment no outstanding request from the FENATEX. Among the affiliates of this organisation are the Union of Employees and Workers of the Textile and Allied Industries of the Province of Santiago which possesses legal personality and because of this it continues to function. The Minister of Labour indicated that in the absence of legal personality the FENATEX and the FIEMC were not subject to control as regards their administration.
  51. 51 The Committee takes note of this information.
  52. 52 As regards the National Association of Education Service Employees (ANESE), the Fact-Finding and Conciliation Commission had recommended that the takeover of this organisation be brought to an end. At its November 1977 session the Governing Body, on the Committee's recommendation, requested the Government to state whether the members of the executive Committee of the ANESE still included a representative of the Ministry of Education.
  53. 53 It was not possible to gather any new information concerning this question. The Committee again expresses the wish that the Government supply information on the possibility of a representative of the Ministry of Education being present on the executive Committee of the ANESE.
• Civil liberties relevant to the exercise of trade union rights
  54. 54 The Fact-Finding and Conciliation Commission had pointed out, inter alia, that the right not to be arrested except in accordance with the ordinary criminal procedure should be guaranteed, and that protection against all forms of ill-treatment during detention should be guaranteed through the issuance of special instructions prescribing effective penalties.
  55. 55 In earlier reports the Government had mentioned the adoption of decrees relating to conditions of detention and the adoption of a legal appeal procedure for use in the event of non-compliance with the obligation to notify detainees' relatives of their arrest. It had also referred to the adoption of Constitutional Act No. 3, for the protection of certain basic human rights. Finally, the Government had stated that all the persons detained under the powers relating to the state of siege had now been released.
  56. 56 In its report the Government states that the state of siege was not prolonged on 11 March 1978. The country is now governed by the provisions relating to a state of emergency, which are more flexible than those providing for a state of siege. A state of emergency is defined in Act No. 12927 on the internal security of the State, which came into force as long ago as 1958. This emergency regime consists mainly in assigning the military command of a specified area to a national defence chief in whom certain specific rights, listed in the Act, are vested. The political and administrative authorities retain their customary powers.
  57. 57 In consequence, the Executive Power is no longer able to exercise certain special rights vested in it under the state of siege. The essential features of the state of emergency are as follows:
      • - the right of the Executive Power to detain persons in their homes or in places other than prisons cannot be exercised for more than five days; during the state of siege it had been possible to exercise it indefinitely;
      • - the Executive Power has no longer the right to transfer persons from one department to another or to expel them; nor is it permissible for transfers to be ordered by the courts; the latter might pronounce sentences of assignment to forced residence, which are different from transfers, intended as a preventive measure;
      • - the right to apply for a writ of habeas corpus is recognised; however, if the Government acted in accordance with the rights vested in it, the court must dismiss the application;
      • - the Executive Power no longer has the right to deprive Chileans of their nationality for unpatriotic activities;
      • - an authority arresting a person is required to notify the judge within 48 hours and place that person at his disposal it was possible for the judge, by a decision with a statement of the reasons adduced therefor, to extend this time limit to ten days;
      • - the competence of the military courts is maintained as regards certain crimes involving internal security and the sentences they might pronounce are the normal sentences (under the state of siege they had been more severe); the ordinary courts are competent as regards the majority of crimes provided for in the law on internal security; the wartime powers granted to military courts had been revoked
      • - in the case of most of the decisions which the military chief was allowed to take an appeal now lay to the competent courts.
  58. 58 The Government hoped that it would be possible for the restrictions associated with the state of emergency to be eliminated to the extent practicable, and within the near future.
  59. 59 With regard to detention, the Government remarked that the number of persons in custody during the state of siege had begun to decline as soon as adequate conditions could be guaranteed to ensure that releases did not result in a disturbance of the peace. The special places of detention were now empty and used for other purposes, since the vast majority of the detainees had been released unconditionally. They had not been made to leave the country, with the exception of a few who were particularly dangerous. Furthermore, many of those sentenced by the courts had been pardoned out of 1,502 applications submitted to the Special Pardons Board, only 55 had been rejected.
  60. 60 The Minister of Justice confirmed to the representative of the Director-General the modifications that had been introduced following the abolition of the state of siege and the commencement of the state of emergency. The Minister indicated, as the president of the Supreme Court had done, that at present the decisions of the military courts in questions concerning the law on the control of arms and certain provisions of the law on internal security were subject to review by the Supreme Court. They also indicated that the amparo or habeus corpus procedure is still fully in force.
  61. 61 The appeal for protection procedure, set up by the Constitutional Act No. 3, is designed to guarantee other rights and liberties. According to the Minister of Justice, this procedure is fully utilised before the courts of appeal, in particular against acts of the administrative authority, and it has been invoked against a resolution of the council of state (Contraloria General de la Republica). The Minister of Labour furnished the representative of the Director-General with the text of a decision rendered by the court of appeal of Valparaiso concerning an appeal of this type presented by a former trade union leader against a decision of the maritime authority. The court examines the facts alleged, as well as the legal provisions and the contractual ones in force.
  62. 62 The government authorities stressed the importance which it considers appropriate to give to the amnesty granted in accordance with Decree No. 2191 of 18 April 1978. They indicated that in terms of this measure the amnesty applies to all persons who were implicated in crimes of all kinds (except for certain rare exceptions) during the state of siege, that is to say between 11 September 1973 and 10 March 1978, unless action has been taken against them or unless they have been sentenced. It also covers persons sentenced by the military tribunals after 11 September 1973 as in the case of various trade unionists or former trade unionists mentioned in the report of the Fact-Finding and Conciliation Commission.
  63. 63 The Minister of Justice pointed out that the amnesty had been criticised in certain quarters because of the wideness of its scope. The insertion of murder amongst those crimes amnestied was in response to the fact that it would not otherwise have been possible to extend the measure to certain persons sentenced by the military tribunal. All those sentenced to terms of imprisonment by the military tribunals have been set free but in certain rare cases they have had to leave the country. The Minister of Justice supplied a list of persons freed, amongst whom are Luis Humberto Contreras Arovena who had been mentioned in the case presently before the Committee. As a result of the amnesty, measures of banishment and of house arrest resulting from judicial sentences have also been brought to an end. Persons who, when the amnesty was declared, had not been found guilty have also benefited from this measure. The administration of the civil register is actually removing references to the crimes covered by the amnesty.
  64. 64 Persons who have left the country can return to it after making a request to the consulates. According to the Minister of the Interior, the only persons who will be refused entry into the country will be those who have launched campaigns against Chile abroad and also active Marxists. Authorisation to return will be granted by the Minister of the Interior after examining each case. Appeal to the courts will be possible.
  65. 65 The Committee notes with great interest the measures taken by the Government, especially concerning the declaration of the amnesty. In this connection, the Committee must recall that the Fact-Finding and Conciliation Commission had already stated in its report that the application of measures of clemency or even of amnesty would certainly help to create a climate favourable to a return to normalcy which is an important condition for the effective exercise of trade union rights and for the development of the whole country in the years ahead.
  66. 66 The Committee hopes that the Government will continue to adopt measures especially in order to facilitate the return of trade unionists to the country and measures which are designed to re-establish the full exercise of civil rights, and to permit thereby the return to a normal trade union situation.

The Committee's recommendations

1. 67. In these circumstances, the Committee recommends the Governing Body:
   • (a) to note that, in accordance with the decision adopted by the Governing Body at its 204th Session (November 1977) the Government of Chile has transmitted a further report on the evolution of the situation as regards the recommendations of the Fact-Finding and Conciliation Commission on Freedom of Association;
   • (b) to note that the promulgation of the new legislation on trade unions, which is still being prepared, is provided for in the process of evolution of the trade union situation, but to point out to the Government that one of its priorities should be the repeal of Decree-Law No. 198 and the promulgation, as soon as possible, of legislation in conformity with the principles of the ILO;
   • (c) to note with interest the Government's announcement of a return shortly to collective bargaining and to draw its attention to the principles and considerations set out in paragraph 38 above concerning the right to strike;
   • (d) to draw the attention of the Government to the considerations set out in paragraphs 44-46 above concerning trade union organisations in the agricultural sector and to invite it, in particular, to adopt appropriate measures to facilitate the financing of federations and Confederations in this sector;
   • (e) to note the information concerning the situation of FENATEX and FIEMC and to request the Government once again to provide information on the possible presence of a representative of the Ministry of Education on the Executive Committee of ANESE,
   • (f) to note with interest the measures taken by the Government, especially as regards the amnesty, and to express the hope that other measures will be adopted, as soon as possible, in order to fully re-establish the exercise of civil rights, thus permitting the return to a normal trade union situation;
   • (g) to request the Government to continue to send information on the evolution of the trade union situation as regards the recommendations of the Fact-Finding and Conciliation commission and to transmit a report thereon by 15 October 1978.