Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2626 (Chile) - Complaint date: 30-NOV-07 - Closed

Allegations: The complainants allege restrictions on the right to strike, repression and arrests of demonstrators by the forces of law and order, refusing union leaders access to their workplaces, anti-union dismissals and failure to comply with the Framework Agreement that had put an end to the dispute

1. 385. The Committee examined this case at its meeting in May–June 2009 and submitted an interim report to the Governing Body [see 354th Report, paras 305–363, approved by the Governing Body at its 305th Session (June 2009)].
2. 386. Subsequently, the Government sent new observations in a communication dated 4 November 2009.
3. 387. 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. 388. During its last examination of the case, in May–June 2009, the Committee made the following recommendations on the outstanding issues [see 354th Report, para. 363]:
   • (a) The Committee requests the Government to provide information on any proceedings against the two workers arrested during the search, sanctioned by judicial order, of the home of a member of the union, Mr Juan Carlos Miranda Zamora and Mr Francisco Javier Díaz Herrera (who, according to the complainants, were not charged) and whether other union leaders or members have been arrested and charged in relation to the strike carried out by the CTC between 25 June and 1 August 2007, and, if so, that it provide information on the charges brought and the current status of any legal proceedings. Furthermore, the Committee requests the Government to provide information on whether any legal action has been brought in respect of these violent events.
   • (b) The Committee requests the Government to ensure compliance with the agreement concluded on 1 August 2007 between CODELCO, the subcontracting enterprises and the CTC. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government to provide information on the specific facts of the cases and the reasons given for beginning proceedings to remove the union leaders Mr Emilio Zárate Otárola, Mr Patricio Rocco Bucarey, Mr Luis Garrido Garrido, Mr Patricio Alejandro García Barahona, Mr Ramón Segundo Salazar Vergara, Ms Viviana Andrea Abud Flores and Mr Juan Francisco González Bugueño, and on the outcome of these proceedings.
   • (d) The Committee requests the Government to take all necessary measures to promote an agreement between CODELCO and the CTC so that the CTC’s representatives can gain access to workplaces to pursue their union activities, without compromising the functioning of the enterprise. Furthermore, the Committee requests the Government to investigate the allegation that the union leaders mentioned in the complaint have been refused work and to keep it informed in this regard.

B. The Government’s reply

1. 389. It its communication of 4 November 2009, the Government states that it transmitted the recommendations of the Committee on Freedom of Association in this case to the enterprise CODELCO. CODELCO has provided information in response.
2. 390. With regard to the status of legal proceedings against Mr Juan Carlos Miranda and Mr Francisco Javier Díaz Herrera, who are alleged to have been detained during a house search sanctioned by judicial order, the Government states that it has no information on the matter, but undertakes to provide any information relating to the case as soon as possible. Notwithstanding the above, Mr Francisco Javier Díaz Herrera is currently working for a contracting enterprise that provides services to CODELCO’s Andean division.
3. 391. Concerning the Framework Agreement signed on 1 August 2007, the Government states that it has been fully implemented and that there are no administrative or legal complaints relating to it. The Government points out that CODELCO is not the employer of those who work for the contracting enterprises that provide it with labour or services, using their own staff, on their own account, at their own risk, and under their authority (in accordance with the provisions of section 183-A of the Labour Code). Nevertheless, with the aim of ensuring that the commitments assumed by the contracting enterprises in the aforementioned Framework Agreement are fulfilled in due time, CODELCO has resolved to include the fulfilment of the commitments acquired by contracting enterprises as employers, as a requirement in its tendering procedures and documents, as reflected in the Agreement. The Government adds that the contracting enterprises that provide services to CODELCO have fulfilled and are fulfilling the terms agreed with their respective workers.
4. 392. With respect to the removal proceedings referred to in the Committee’s report, the Government states that it has no information on the current status of the proceedings. The Government undertakes to report on this matter as soon as possible once it has any relevant information.
5. 393. With regard to access by union leaders to the premises of CODELCO, and a possible agreement between it and the Confederation of Copper Workers (CTC) to enable trade union representatives from contracting enterprises to enter workplaces in order to pursue their trade union activities, without compromising the functioning of the enterprise, the Government reiterates that union leaders from the CTC are not employed by CODELCO but by contracting enterprises that have provided or could provide services to the main enterprise under tendering procedures that may arise. This being the case, if one or more leaders usually work for their contracting employer at sites or workplaces belonging to CODELCO, and if they possess the duly authorized passes or cards, they may enter the industrial areas in which they perform contractual services.
6. 394. The Government adds that, notwithstanding the above, under Chilean labour legislation, trade union leaders from a contracting enterprise may enter sites or workplaces operating within dependencies of a main enterprise, only if members of their unions work there and if the purpose of visiting a particular site or workplace is to carry out trade union activities, always in strict compliance with the safety standards and subject to the prior coordination required for the workplaces in question. On this last point, the Government underlines that there is no free access to industrial areas and other dependencies of CODELCO’s divisions, inasmuch as the access is regulated by the legal imperative to safeguard the health and physical integrity of persons and the safety of installations, as prescribed by section 184(1) of the Labour Code: “The employer shall be obliged to take the measures necessary to effectively protect the life and health of workers, maintaining appropriate health and safety conditions in workplaces, as well as the equipment necessary to prevent occupational accidents and diseases.”

C. The Committee’s conclusions

1. 395. The Committee takes note of the information provided by the Government in relation to the recommendations that it made in its previous examination of the case at its meeting in May–June 2009. The Committee notes the Government’s statement that according to the enterprise the Framework Agreement signed on 1 August 2007, has been fully implemented and that there are no administrative or legal complaints relating to it; the Government also points out that CODELCO is not the employer of those who work for the contracting enterprises that provide it with labour or services, using their own staff, on their own account, at their own risk, and under their own authority (in accordance with the provisions of section 183-A of the Labour Code); nevertheless, with the aim of ensuring that the commitments assumed by the contracting enterprises in the aforementioned Framework Agreement are fulfilled in due time, CODELCO has resolved to include the fulfilment of the commitments acquired by contracting enterprises as employers, as a requirement in its tendering procedures and documents, as reflected in the Agreement. According to the Government, the contracting enterprises that provide services to CODELCO have fulfilled and are fulfilling the terms agreed with their respective workers.
2. 396. With respect to the status of legal proceedings against Mr Juan Carlos Miranda and Mr Francisco Javier Díaz Herrera, who are alleged to have been detained during a search, sanctioned by judicial order, of the home of a union member, and with respect to developments in and the results of the removal proceedings against union the leaders Mr Emilio Zárate Otárola, Mr Patricio Rocco Bucarey, Mr Luis Garrido Garrido, Mr Patricio Alejandro García Barahona, Mr Ramón Segundo Salazar Vergara, Ms Viviana Andrea Abud Flores and Mr Juan Francisco González Bugueño, the Committee takes note of the Government’s statement that it has no information on the issues and undertakes to provide any information as soon as possible. The Committee therefore reiterates its previous recommendations and expects to receive the information requested without delay. The Committee reiterates its request to the Government to report on whether legal proceedings have been initiated in respect of the violent acts during a lawful strike between 25 June and 1 August 2007, mentioned in the complaint.
3. 397. As regards the recommendation concerning access by union leaders to workplaces at the enterprise and a possible agreement between the latter and the CTC to enable trade union representatives from contracting enterprises to enter workplaces in order to pursue their trade union activities, without compromising the functioning of the enterprise, the Committee notes that the Government underlines the fact that union leaders from the CTC are not employed by the enterprise but by contracting enterprises that have provided or could provide services to the main enterprise under tendering procedures that may arise. Therefore, if one or more leaders usually work for their contracting employer at sites or workplaces belonging to the enterprise, and if they possess the duly authorized passes or cards, they may enter the industrial areas in which they perform contractual services. The Committee also notes that, according to the Government, under Chilean labour legislation, trade union leaders from a contracting enterprise may enter sites or workplaces operating within dependencies of a main enterprise, only if members of their unions work there and if the purpose of visiting a particular site or workplace is to carry out trade union activities, always in strict compliance with the safety standards and subject to the prior coordination required for the workplaces in question. In particular, in the case of a mining enterprise, there is no free access, as it must be guaranteed that the health of persons and the safety of installations are safeguarded, as laid down in the Labour Code. Taking full account of these specific circumstances relating to the enterprise, the Committee reiterates its previous recommendation concerning the promotion of an agreement between the enterprise and the CTC trade union on access by CTC representatives to workplaces or nearby areas, taking full due account of the safety of workers and the mine and in accordance with national law.
4. 398. Lastly, the Committee had requested the Government to investigate the allegation that the union leaders mentioned in the complaint had been refused work, and to keep it informed in this regard. On this matter, the Committee notes that the Government has only reported that trade union member Mr Francisco Javier Díaz Herrera is currently employed by a contracting enterprise that provides services to the Andean division of CODELCO. The Committee requests the Government to indicate without delay whether the other union leaders mentioned in the complaint have been refused work.

The Committee's recommendations

1. 399. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects to receive without delay information from the Government on the status of legal proceedings against those arrested during the search, sanctioned by judicial order, of the home of a union member, Mr Juan Carlos Miranda Zamora and Mr Francisco Javier Díaz Herrera (who, according to the complainants, have not been charged), and as to whether other union leaders or members have been arrested and charged in relation to the strike carried out by the CTC between 25 June and 1 August 2007, and, if so, requests that the Government provide information on the charges brought against them and the current status of the legal proceedings. Furthermore, the Committee requests the Government to supply information as to whether any legal action has been initiated in respect of the violent acts.
   • (b) The Committee expects to receive without delay information from the Government on the specific facts of the cases and the reasons given for beginning proceedings to remove the union leaders Mr Emilio Zárate Otárola, Mr Patricio Rocco Bucarey, Mr Luis Garrido Garrido, Mr Patricio Alejandro García Barahona, Mr Ramón Segundo Salazar Vergara, Ms Viviana Andrea Abud Flores and Mr Juan Francisco González Bugueño, as well as on the outcome of these proceedings.
   • (c) The Committee requests the Government to take the necessary measures to promote an agreement between CODELCO and the CTC so that the CTC’s representatives can gain access to workplaces or nearby areas to pursue their union activities, without compromising the functioning of the enterprise and with full due consideration for the safety of workers and of the mine and in accordance with national law. Furthermore, noting that the Government has only reported that Mr Francisco Javier Díaz Herrera is employed by a contracting enterprise that provides services to CODELCO, the Committee requests the Government to indicate without delay whether the other union leaders mentioned in the complaint have been refused work.