Interim Report - Report No 344, March 2007

Case No 2465 (Chile) - Complaint date: 29-NOV-05 - Closed

Allegations: Use of police to prevent strikers from demonstrating and arrest of trade unionists; hiring of workers to replace the strikers; establishment of an employer-controlled trade union; anti-union dismissals

668. The complaint is contained in a communication from the United Federation of Workers (FUT) dated 29 November 2005. The organization sent further information and new allegations in communications dated 22 December 2005 and 14 March 2006.

1. 669. The Government sent its observations in a communication dated 28 July 2006.
2. 670. 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. The complainant’s allegations

1. 671. In a communication dated 29 November 2005, the FUT alleges that Interparking Ltda. (a company that operates the parking meters in the municipalities of Las Condes and Estación Central) has been harassing workers belonging to the National Inter-Enterprise Union of Metallurgy, Communications, Energy and Allied Workers (SME). For example, the company dismissed trade union delegates Claudio Elgueta Valenzuela and Juan Valenzuela and, during the drafting a collective agreement, SME member Gonzalo Orellana. The company was forced to reinstate all three workers.
2. 672. The FUT adds that, once negotiations on the collective agreement collapsed, strike action was approved on 17 November 2005. When an attempt by the Labour Inspectorate to use its good offices failed, the strike became effective on 28 November 2005, with the parking-meter workers demonstrating peacefully in the morning in front of the town hall of Las Condes. Sixteen police officers (carabineros) and four radio patrol cars were sent to the scene of the demonstration. It was later revealed by a councillor that the mayor of the municipality and a commissioner had ordered the police to arrest trade union delegate Claudio Elgueta Valenzuela. At 4 p.m. the workers began a peaceful march towards the locations where the parking-meter workers of Las Condes work. Along the way, a police patrol tried to arrest the said trade union delegate on the grounds that the march had not been authorized, and escorted the workers to a shopping centre; there, a police officer checked the identities of the workers and some time after 5.30 p.m. arrested union delegate Claudio Elgueta Valenzuela (a member of the bargaining committee for the draft collective agreement), without producing a warrant. The union delegate was then taken to the 11th Police Station of Las Condes, where he was held pending his appearance in court the next day, supposedly to face a charge dating back to June 2004.
3. 673. The FUT states that the company proceeded to hire strike-breakers and that police officers halted the peaceful demonstration at the scene of the strike, claiming that it had not been authorized by the state authority.
4. 674. In its communication of 22 December 2005, the FUT alleges that article 381 of the Labour Code allows for the replacement of striking workers and the use of strike-breakers and sets a 15-day deadline from the start of a strike for workers to return to work. Interparking Ltda., the company that holds the concession for the parking meters of the communes of Las Condes and Estación Central, replaced all the striking workers belonging to the SME trade union.
5. 675. The FUT also alleges that, on 13 December 2005, the striking workers peacefully occupied office No. 312 (leased by the company) from 7 a.m. onwards. The police, without identifying themselves, first asked to see union official Jorge Murúa Saavedra’s identity card and the permit to demonstrate issued by the metropolitan administration of Santiago, and then barred the entrance, prevented access to the scene of the strike and took up positions around the office, while the company refused to negotiate with the trade union.
6. 676. At around 10.30 a.m., the (still hostile) uniformed police officers, again without identifying themselves to the strikers or offering any explanation for their action, decided to break into office No. 312 of Interparking Ltda., first kicking at the door and then striking it violently several times. After completely destroying the door to the office, without saying anything or identifying themselves, they took over the office by force, where they held the occupants for around 30 minutes, handcuffing them and taking their photograph. Once the workers had been detained and handcuffed, the police officer in charge informed union official Jorge Murúa Saavedra that the order to evict the occupiers of the office had been issued over the telephone by Public Prosecutor Gabriela Cruces, for alleged forcible entry, and that once the premises had been inspected Víctor Manuel Vidal, Gonzalo Orellana and Felipe Cofre would be released.
7. 677. These workers will be tried according to Chile’s new criminal system, having held a peaceful strike and occupation, which was violated by the uniformed police, employing material means supposedly authorized by a public prosecutor who never visited the scene and who does not qualify as a judge. These workers could possibly be imprisoned for having held a strike.
8. 678. In its communication of 14 March 2006 the FUT alleges that Interparking Ltda. has continued to put pressure on workers belonging to the SME; since 22 December 2005, this trade union has lost all its members, while two company unions have been established, one by former SME members on 13 January 2006 and the other under pressure from Interparking Ltda., which financed and authorized logistical work during working hours for the setting up of a so-called “Metropolitan Union of Parking Meter Workers and Controllers of Interparking Ltda.”, which is an employer-controlled union. The greatest cause for concern regarding the establishment of this employer-controlled union is the fact that any worker who is not a member of the union is dismissed.
9. 679. The first worker to be dismissed was Felipe Cofre Arriagada, even though he has immunity under article 221 of the Chilean Labour Code, which states that “workers who take part in the establishment of a company union, a union covering a company plant, or an inter-enterprise union shall enjoy trade union immunity from ten days prior to the holding of the constituent assembly till 30 days after the assembly has been held. The duration of this right may not exceed 40 days.” His dismissal is part of the reprisals carried out by the company against the workers who occupied one of its offices peacefully.
10. 680. On 3 February 2006, Víctor Manuel Vidal Bustamante, another worker who participated in the peaceful occupation and who was likewise detained by Chilean police on the orders of the public prosecutor, was also dismissed. The Labour Inspectorate ordered his reinstatement on 9 February 2006, and the company agreed to reinstate him on 10 February 2006. He then participated in the founding of the company union of Interparking Ltda., but was dismissed on two further occasions, until the Labour Inspectorate exerted its authority to fine the company 80 tax units on 22 February 2006. After just a single telephone call, the company reinstated him the next day.
11. 681. Mauricio Contreras Espinoza, a worker belonging to the SME trade union, was also the victim of an anti-trade union dismissal.
12. 682. The company also dismissed SME trade unionists Diego Rojas Araos and Héctor Aedo Faundez, who had participated in the strike held by the SME trade union.
13. 683. Fernando Quezada Guzmán, a former member of the SME trade union and currently a union delegate of the Inter-Enterprise Services Union (SIS), was also the victim of anti-trade union dismissal, being dismissed from Interparking Ltda. on 14 March 2006. Interparking Ltda. also dismissed the President of the Union Parking Meter Workers and Controllers of Interparking Ltda., Juan Javier Quezada Guzmán, and union delegate Juan Valenzuela Navarro on 6 March 2006, and has not given them any work since that date. The Labour Inspectorate imposed the fines provided for by law but the company prefers to pay the fines rather than reinstate the union officials.
14. B. The Government’s reply
15. 684. In its communication dated 28 July 2006, the Government states that the rights referred to in ILO Conventions Nos. 87 and 98 and the right to assemble and demonstrate are recognized in the Constitution and under the national legislation and are effectively safeguarded by a system of inspections carried out by the Labour Directorate. This system makes it possible to ensure compliance, even by force, through administrative and legal procedures. Article 476 of the Labour Code states that labour legislation inspection is the responsibility of the Labour Directorate and is the very basis of this decentralized public service. The Directorate has legal personality and its own assets, and is subject to the supervision of the President of the Republic through the Ministry of Labour and Social Security. Its “essential task” in the area of trade union affairs is to ensure that trade union organizations operate in accordance with the legislation in force and the principles of freedom of association established in ILO Conventions Nos. 87 and 98. It also acts as certifying officer in collective bargaining; during the negotiations themselves it adopts a neutral stance, though it still has the power to prevent unfair practices even though the law courts always have the last word in this field.
16. 685. As to the workers’ complaint regarding the actions of the state bodies during the strike held by the workers of Interparking Ltda. on 13 December 2005, the Government states that the right to strike is established under the Chilean legal system as a manifestation of freedom of association. Thus, Title IV of Book III of the Labour Code, which regulates the right to strike, explicitly recognizes it as the right of all Chilean workers.
17. 686. The Committee on Freedom of Association has always held that the right to strike is one of the fundamental rights of workers, in that it is a means of defending their economic interests and one of the “essential means through which workers and their organizations may promote and defend their economic and social interests”. This opinion is given expression in Chile’s legal system, so long as the right to strike is not abused and does not extend to a disturbance of the public order and to criminal activities.
18. 687. The hiring of replacement personnel is regulated by article 381 of the Labour Code. This prohibits the practice save in exceptional circumstances when specific requirements must be fulfilled which, being an exception to the general rule, must be interpreted in a restrictive manner.
19. 688. As to the allegations, the Labour Directorate states in its report that on 30 August 2005 a group of 51 workers of Parquímetros y Controles Interparking Ltda. initiated a bargaining process in the normal manner at which they presented a draft collective agreement as a group. Since, at the time, there was no collective instrument in force in the company, the provisions of article 320 of the Labour Code were applied. Consequently, the employer responded on 17 October 2005 by contacting the workers’ bargaining committee, to which it sent its final offer on 8 November.
20. 689. On 17 November 2005, a vote was held on whether to accept the final offer or to take strike action, as a result of which it was decided to call a strike. The next day the workers’ bargaining committee requested the good offices of the authorities, in accordance with article 374bis of the Labour Code. As no agreement was reached, the workers began their strike on 28 November 2005. The strike lasted 18 days, at the end of which, there being no agreement in sight, the workers involved in the collective bargaining process returned to work under the contractual conditions contained in the employer’s final offer.
21. 690. In its report the Labour Directorate states that the process unfurled in a context of major conflict, as can been seen from the numerous complaints that were lodged and inspections that took place during the collective bargaining process, with some 14 fines being issued for various labour violations by the labour inspectorates. One of the complaints concerned the illegal dismissal of a worker involved in the collective bargaining process.
22. 691. The events described above are completely in line with the provisions of article 292 of the Labour Code, reaffirmed by the administrative case law of the Labour Inspectorate itself in accordance with its authority, on its own initiative or at the request of an interested party, to rule on the interpretation and scope of labour laws (Legislative Decree No. 2 of 1967, Organic Law of the Labour Directorate). By Order No. 4674/196 issued in accordance with Chilean legislation, and specifically with articles 292, 289, 290 and 291 of the Labour Code and article 23 of the Ministry of Labour and Social Security’s Legislative Decree No. 2 of 1967, the National Labour Directorate ruled that “The courts have the authority to determine conduct as anti-trade union, without prejudice to the intervention of the Labour Inspectorate as set out in article 292 of the Labour Code.”
23. 692. Labour inspectorates operating under the National Labour Directorate have a duty to report any incidents they consider to constitute anti-trade-union or unfair practices, and there is a legal presumption that the accompanying investigation report is a true reflection of the facts (article 292, paragraph 4, of the Labour Code). A labour inspectorate that reports an anti-union practice may be called upon to appear in court in any legal proceeding that may ensue.
24. 693. Likewise, workers may directly lodge a complaint with an ordinary court of law regarding any incident which they consider to constitute an anti-union practice or anti-union bargaining.
25. 694. Finally, in accordance with article 420(b) of the Labour Code, the mandate of the labour courts comprises “any issues arising from the application of standards on trade union organization and collective bargaining that the law assigns to courts of law with competence in labour matters”.
26. 695. It is clear from the foregoing that Chile has a whole series of laws that recognize, promote and protect the rights set out in Conventions Nos. 87 and 98, especially as regards anti-trade union and unfair practices in the course of collective bargaining. Moreover, Act No. 19759 of 2001 listed what are considered unfair and anti-union practices in great detail, increased the amount of fines and granted increased powers to the National Labour Directorate, which it authorized to be a party to court proceedings on such matters. In this regard, Chilean labour law provides for special courts, with exclusive competence in labour matters, which inter alia are empowered to deal with complaints of anti-union practices lodged by the workers themselves or by the Labour Directorate, as well as any questions arising from the application of standards on trade union organization and collective bargaining.
27. 696. Very often, strikes are a symptom of wider and general problems and workers’ complaints have their immediate roots in a labour dispute which was not satisfactorily resolved by the parties concerned, and this is apparent in the report of the inspection body referred to here.
28. 697. Following the inspection, the company was issued with 26 fines covering the period from February 2005 to March 2006, and there are 11 ongoing inspections, one of which concerns a complaint alleging anti-union practices.
29. 698. Regarding the complainant organization’s reference to the intervention of police officers and the Office of the Public Prosecutor in the strike held by the workers of Interparking Ltda., and specifically the events of 13 December 2005, it should be recalled that the Committee on Freedom of Association states in its Digest of decisions and principles [para. 642] that “the Committee has recommended the dismissal of allegations of intervention by the police when the facts showed that such intervention was limited to the maintenance of public order and did not restrict the legitimate exercise of the right to strike”.
30. 699. In keeping with the approach of the Committee, the Government of Chile did not use the police or the Office of the Public Prosecutor to break the legitimate strike held by the workers of Interparking Ltda. According to the Labour Directorate, the strike lasted 18 days, after which the workers involved in the collective bargaining process were reinstated in their jobs under the contractual conditions contained in the final offer made by the employer. Therefore, the action taken by the State and its agents did not influence in any way the outcome of the strike or of the collective bargaining process (beyond the good offices of the Labour Directorate requested by the workers’ bargaining committee, in accordance with article 374bis of the Labour Code.
31. 700. It should thus be noted that each of the state bodies acted within its mandate under the Constitution and the law, pursuant to the provisions of articles 6 and 7 of the political Constitution of the Republic.
32. 701. Moreover, as regards the actual incidents denounced, the workers met at the entrance of the commercial offices of Interparking Ltda. on 13 December 2005, having obtained the necessary permit from the regional government. According to the Chilean police, police officers reported that a group of 12 individuals employed by Interparking Ltda., who were holding a strike, had congregated at 520, avenida Manquehue in the commune of Las Condes, without creating any kind of disorder or disturbance of the peace. The officer in charge at the scene spoke with the group’s spokesperson, who was leading the demonstration. The latter produced a document from the metropolitan administration of Santiago authorizing the demonstration, and also a written undertaking stating that “the participants undertook to take all necessary measures to ensure the normal and peaceful conduct of the demonstration and to avoid any action liable to damage public or private property or seriously to disturb the peace”. The signed document contained an undertaking by the workers to assume responsibility for any damage caused and to provide any assistance that might be required by the courts of law.
33. 702. The police withdrew from the scene as soon as they had checked the above documents and verified that the situation was calm. However, they were subsequently informed that individuals participating in the demonstration had entered the central office of Interparking Ltda. and had locked themselves inside office No. 312 at 520, avenida Manquehue. Returning to the scene, the same officer in charge proceeded to question the company’s administrator, who stated that three workers were locked in the commercial office and were preventing other workers and management staff from entering. The administrator said that, when he opened up the premises, a supervisor of the company “had been accosted by various workers who proceeded to lock themselves in, while a steady stream of striking workers were coming and going”.
34. 703. The police officers tried to contact individuals who had taken over the company’s commercial office directly, but according to the police report the strikers refused to engage in any dialogue. The officer in charge then contacted the Public Prosecutor on duty at the local Public Prosecutor’s Office in Las Condes. With the authorization of the Public Prosecutor and the administrator, the police officers then proceeded in accordance with the law and attempted to enter the building at 9.50 a.m. At 11 a.m. they gained entry and, inside, found Felipe Andrés Cofre Arriagada, Gonzalo Alberto Orellana Salazar and Víctor Manuel Vidal Bustamante.
35. 704. The Chilean police stated that, during the occupation, the commercial office of Interparking Ltda. was damaged and property belonging to the company was stolen. The police further stated that, as a result of the occupation of the office by the persons referred to above, the company lost around 600,000 Chilean pesos in uncollected parking meter charges, because all the equipment needed to collect the money was inside the office and the workers inside prevented anyone from removing it.
36. 705. The Public Prosecutor was informed by the police of the incident, and of the fact that the administrator of Interparking Ltda. had denounced the theft of the aforementioned property (batteries).
37. 706. At the same time the police informed the Public Prosecutor that the detainees had been searched but that none of the stolen property had been found on them. The Public Prosecutor then ordered the officers to free the suspects pending summonses being issued and after verifying their addresses. The workers who had been detained were released at 12.45 p.m. on the same day (13 December), having been read their rights and having signed documents to that effect.
38. 707. The police report is in line with the information provided by the Office of the Public Prosecutor. In his report, the Regional Public Prosecutor for the Eastern Metropolitan Region states that the Public Prosecutor limits itself to investigating offences, providing support for criminal proceedings and protecting victims and witnesses, in accordance with article 80A of the Constitution; it does not question, and certainly does not impede, the right to strike or any other workers’ right that is recognized by the legislation in force.
39. 708. The incidents denounced by the complainant trade union are related to case RUC No. 0500658262-3 charging Felipe Andrés Cofre Arriagada, Gonzalo Alberto Orellana Salazar and Víctor Manuel Vidal Bustamante with theft and damage to property. The events occurred on 13 December 2005, on the morning of which the deputy Public Prosecutor of the local Public Prosecutor’s Office of Las Condes was on duty and was informed by officers of the 17th Chilean police station that a group of workers with a permit issued by the regional authority to hold a peaceful public demonstration had broken into the commercial office of Interparking Ltda., locked themselves inside and blocked access with various objects. The Chilean police said that this was a flagrant case of causing damage and possible theft and that the administrator of the company had expressly authorized the police to enter the premises. The Public Prosecutor accordingly ordered them, if they had that authorization, to enter the occupied office and, if an offence had been committed and its perpetrators were present, to follow the appropriate procedure. Minutes later the police announced that they had followed the procedure and had arrested three of the individuals present inside the office (Felipe Andrés Cofre Arriagada, Gonzalo Alberto Orellana Salazar and Víctor Manuel Vidal Bustamante) on suspicion of having committed offences involving damage and theft, since the administrator had noted that various pieces of property were missing. These were not recovered and, when searched, the detainees had nothing on them, but they could have been removed by other workers who had left minutes beforehand.
40. 709. It is clear from the above that the Public Prosecutor intervened on the grounds that offences had been committed involving damages and theft, and this is still being investigated since the right to hold a legal strike does not entitle the strikers to commit such offences. No order to evict the individuals was issued, but the suspects were removed from the premises by the police because of the offence they were suspected of having committed.
41. 710. It should also be pointed out that the three suspects were not detained beyond the time necessary for the police to draft their report and that they did not suffer any injuries. They also chose to exercise their right to remain silent and the case is currently ongoing.
42. 711. The Public Prosecutor’s report states that it is its constitutional duty to investigate any incident that appears to constitute an offence, and this does not in any way prejudge who is the responsible party. In any investigation, the decision concerning the legal follow-up is based on the information gathered.
43. 712. The Public Prosecutor’s report concludes by pointing out that the police acted within their powers, inasmuch as the case involved a flagrant offence under the terms of article 79 et seq. and articles 128 and 129 of the Code of Criminal Procedure. For its part, the Office of the Public Prosecutor, as an independent body with constitutional rank, is expressly authorized to act in the manner described, in accordance with articles 180, 181 and 131 of the said Code.
44. 713. As to the detention of Don Claudio Elgueta Valenzuela, the Eastern Metropolitan Prefecture of the Criminal Investigation Department stated that he was detained under an existing warrant issued by the Sixth Criminal Court of Santiago, and that the police had acted within the law and internal regulations governing the police in such matters, there being no political motive as had been claimed.
45. 714. In conclusion, the Government states that the right to strike is one of the most important expressions of freedom of association and is recognized and protected by the labour legislation in force, but that it is limited by the need to maintain public order. In the case in question, the Office of the Public Prosecutor and the police officers operating under its authority acted within the powers granted to it by the Constitution and the law in investigating a complaint regarding an offence arising from the occupation of premises outside the framework of a legitimate strike by workers of Interparking Ltda. The police action concerned a case of damage and theft which is still being investigated, inasmuch as the right to hold a legal strike does not authorize such unlawful activities. The Government believes that the Committee should also take note of the fact that Claudio Elgueta Valenzuela was arrested by the Chilean Criminal Investigation Department under a warrant issued by a Chilean court prior to the events described.
46. 715. The Government states that it will keep the Committee on Freedom of Association informed of any developments in the cases still under investigation in this matter.

C. The Committee’s conclusions

1. 716. The Committee notes that in the present case the complainant organization has alleged: (1) the presence of police officers at a peaceful demonstration held by striking parking-meter employees of Interparking Ltda. in front of the town hall of Las Condes on the morning of 28 November 2005 and at the march that the workers held in the evening, on which occasion they checked the identity of the workers and arrested union delegate Claudio Elgueta Valenzuela without producing a warrant; (2) the hiring of strike-breakers by the company to replace all the striking workers, under the terms of article 381 of the Labour Code which allows for the replacement of striking workers and sets out a 15-day deadline from the start of the strike for them to return to work; (3) the forced entry by the police into a company office being peacefully occupied by the strikers on 13 December 2005 and their eviction on the order of a Public Prosecutor for allegedly breaking and entering, and the arrest and handcuffing of Felipe Andrés Cofre Arriagada, Gonzalo Alberto Orellana Salazar and Víctor Manuel Vidal Bustamante; (4) the establishment of an employer-controlled union financed by the company and the loss of all its members by the SME trade union which had organized the strike; (5) the dismissal of two workers who took part in the peaceful occupation of the company’s office, Felipe Andrés Cofre Arriagada and Víctor Manuel Vidal Bustamante (the latter, after being dismissed on three consecutive occasions and after the company had been fined by the Labour Inspectorate, was reinstated in his job); the dismissal of the trade unionists Mauricio Contreras Espinoza (a former SME member), Diego Rojas Araos and Héctor Aedo Faundez (both of whom participated in the strike); the dismissal of trade union delegate and former SME member Fernando Quesada Guzmán, union official Juan Javier Quesada Guzmán and union delegate Juan Valenzuela Navarro, who have still not been reinstated despite the fact that the Labour Inspectorate ordered their reinstatement and despite the fines imposed on the company.
2. 717. The Committee notes the Government’s statement to the effect that: (1) the rights provided for by Conventions Nos. 87 and 98 and the right to assemble and demonstrate are embodied in the Constitution and in national legislation, under which a number of administrative and judicial bodies carry out inspection activities to combat unfair and anti-trade union practices, including violations of the right to strike and to bargain collectively; (2) the right to strike may not be abused and extended to cover disturbances of the peace and the commission of offences; (3) article 381 of the Labour Code regulates the hiring of personnel to replace strikers, which is prohibited save in exceptional circumstances, when specific requirements must be fulfilled which, being an exception to the general rule, must be interpreted in a restrictive manner; (4) the bargaining process was initiated by 51 workers of the company and unfurled in a context of major conflict, including the illegal dismissal of a worker involved in the collective bargaining process; between February 2005 and March 2006, the company was fined on 26 occasions and there are 11 ongoing inspections, one of which concerns a complaint alleging anti-union practices; faced with the company’s final offer, the workers opted for a strike, which was initiated when the parties could not reach an agreement despite the good offices of the Labour Inspectorate; (5) the strike lasted for 18 days without any agreement being reached, and the workers involved in the collective bargaining process were reinstated under the contractual conditions contained in the final offer made by the employer, without the authorities influencing in any way the outcome of the strike or of the bargaining process (beyond the good offices mentioned above); (6) on 13 December 2005, a group of workers were peacefully exercising their right to demonstrate, having obtained the necessary permit, though subsequently a number of individuals forcibly entered the central office of the company and locked themselves in, barring access to workers and management staff and refusing to talk to the police; (7) having obtained the authorization of the Public Prosecutor and the administrator of the company, the police started trying to enter the office at 9.50 a.m., finally succeeding at 11.00 a.m.; once inside, they found Felipe Andrés Cofre Arriagada, Gonzalo Alberto Orellana Salazar and Víctor Manuel Vidal Bustamante; according to the police, the occupation resulted in theft of and damage to company property, in particular, batteries; moreover, since the strikers occupying the premises had prevented anyone from removing equipment that was stored in the office, the company lost 600,000 Chilean pesos in uncollected parking charges; (8) the three individuals referred to did not have any property belonging to the company on them and were released at 12.45 p.m. pending summonses for offences involving theft and damages (although no stolen property was found on them, the Government states that the objects could have been removed by other workers who had left minutes beforehand); in other words, these individuals were removed from the premises because of the offence of which they were suspected and not for having exercised their legal right to strike; (9) both the police and the Public Prosecutor acted within their legal mandate; (10) as to the arrest of Claudio Elgueta Valenzuela (allegedly in connection with a court case dating back to June 2004, according to the complainant organization), this was carried out under a warrant issued by the penal authorities prior to the events denounced in the complaint before the Committee, there being no political motive, as claimed by the complainant organization.
3. 718. The Committee notes that, as was stated by the Government, the strike took place in a context of major conflict, including the illegal dismissal of a worker involved in the collective bargaining process (later reinstated), the imposition of 26 fines on the company between February 2005 and March 2006 and the existence of 11 ongoing inspections, one of which concerns a complaint alleging anti-union practices. The Committee has stated on various occasions that it does not condone any abuses of the right to strike which lead to criminal or violent acts.
4. 719. The Committee can only regret the context in which the collective bargaining process took place in this case, which has involved repeated violations of the law by the company that have been verified by the authorities, possibly in addition to several more dismissals which the complainant organization alleges were of an anti-trade union nature and which have as yet elicited no response from the Government.
5. 720. The Committee notes that the complainant organization and the Government have provided differing versions of events surrounding the arrest of the union delegate Claudio Elgueta Valenzuela and the subsequent detention (and release after 1 hour 45 minutes) of strikers Felipe Andrés Cofre Arriagada, Gonzalo Alberto Orellana Salazar and Víctor Manuel Vidal Bustamante for occupying the company’s central office; while the allegations refer to the anti-trade union nature of these measures, which were also taken against a background of demonstrations that repeatedly involved the presence and intervention of the police, the Government states that the three trade unionists forcibly entered an office and locked themselves in, with the result that offences involving damage to property and theft occurred which went beyond the legitimate exercise of the right to strike and of which they are accused by the judicial authorities, while union delegate Claudio Elgueta was arrested in connection with criminal proceedings predating the events referred to in the present complaint and under a court warrant. The Committee requests the Government to communicate to it the outcome of legal proceedings against these trade unionists and its observations on the alleged repeated interventions of the police in the demonstration and march held by the strikers on 28 November 2005.
6. 721. The Committee observes that the aspects of the case relating to the bargaining process have been superseded, inasmuch as the striking workers returned to their posts 18 days after the start of the strike and accepted the company’s final offer. The Committee wishes to point out, however, that in the present case the complainant organization has emphasized that the company replaced the striking workers by other workers, under the terms of article 381 of the Labour Code and the Government recognizes that this practice is permitted by law only under exceptional circumstances when specific requirements have been fulfilled.
7. 722. The Committee draws the Government’s attention to the principle previously brought to its notice in Case No. 2141 [see 327th Report, para. 322], according to which the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 632]. The Committee recalls that, on examining Case No. 2141, it requested the Government to take the necessary steps to amend the legislation on this matter [see 327th Report, para. 326] and the Committee requests the Government, in consultation with the most representative organizations of workers and employers, to take the necessary measures to amend the legislation so as to ensure that the replacement of strikers is possible only in the case of essential services in the strict sense of the term (those whose interruption could put at risk the life, physical safety or health of all or part of the population) or in the case of an acute national crisis.
8. 723. Finally, the Committee requests the Government to send, without delay, specific observations on the latest communication of the complainant organization alleging the anti-trade union dismissal of several trade unionists (some of which at least, according to the allegations, have been deemed illegal by the administrative authorities), and the establishment of an employer-controlled trade union organization financed by the company. The Committee also requests the Government to communicate to it the outcome of the ongoing administrative inquiry into a complaint alleging anti-trade union practices on the part of the company.

The Committee's recommendations

1. 724. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to communicate to it the outcome of legal proceedings against Felipe Andrés Cofre Arriagada, Gonzalo Alberto Orellana Salazar and Víctor Manuel Vidal Bustamante (for offences involving damage and theft) and against the trade union delegate and member of the bargaining committee, Claudio Elgueta Valenzuela (allegedly in connection with a court case dating back to June 2004), as well as its observations on the alleged repeated interventions of the police in the demonstration and march held by the strikers on 28 November 2005.
   • (b) Requests the Government, in consultation with the most representative organizations of employers and workers, to take the necessary measures to amend the legislation so as to ensure that the replacement of strikers is possible only in the case of essential services in the strict sense of the term (those whose interruption could put at risk the life, physical safety or health of all or part of the population) or in the case of an acute national crisis.
   • (c) The Committee requests the Government to send, without delay, specific observations on the latest communication of the complainant organization alleging the anti-trade union dismissal of several trade unionists (some of which at least, according to the allegations, have been deemed illegal by the administrative authorities), and the establishment of an employer-controlled trade union organization financed by the company. The Committee also requests the Government to communicate to it the outcome of the ongoing administrative inquiry into a complaint alleging anti-trade union practices on the part of the company.