Report in which the committee requests to be kept informed of development - Report No 377, March 2016

Case No 3017 (Chile) - Complaint date: 28-MAR-13 - Closed

Allegations: the complainant organization alleges restrictions to its president’s access to workplaces, unilateral reductions and discrimination in relation to union leave, non compliance with collective agreements, anti-union dismissals, exclusion and questioning of trade union work, the use of a bonus to promote early, unregulated collective bargaining and impediments to the exercise of the right to strike by the Chilean Chemical and Mining Enterprise (SQM) and its subsidiaries

1. 245. The complaint is contained in communications of 28 March, 21 May and 9 October 2013 from the Third Federation of Workers of the Chilean Chemical and Mining Enterprise.
2. 246. The Government sent its observations in a communication dated 26 February 2015.
3. 247. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 248. In its communications of 28 March, 21 May and 9 October 2013, the Third Federation of Workers of SQM alleges restrictions to its president’s access to workplaces, discrimination in relation to union leave, non-compliance with collective agreements, anti-union dismissals, exclusion and questioning of trade union work, the use of a bonus to promote early, unregulated collective bargaining and impediments to the exercise of the right to strike, by SQM and its subsidiaries. Furthermore, the complainant alleges passivity and failure to respond on the part of the competent authority.
2. 249. First, the complainant alleges that for the last eight years, the enterprise has denied the President of the Third Federation of Workers of SQM, Mr Nelson Pérez, access to SQM work facilities, which not only constitutes anti-union conduct but also discrimination, given that the presidents of the other two union federations are allowed access.
3. 250. Second, the complainant alleges unilateral reductions and discrimination by the enterprise in granting union leave. It indicates that it was the enterprise’s ongoing and constant practice over more than thirty years – which, it considers, constitutes a tacit clause – to grant and pay union leave exceeding the minimum amounts provided for under the law. The complainant reports that in December 2010, the enterprise announced unilateral changes to the contractual conditions of union officials, changing the requirements for requesting union leave and indicating that hours of union leave would thereafter be deducted from wages. The complainant alleges that those deductions have only been applied to its officials.
4. 251. Third, the complainant alleges dismissals of its members and officials on account of their union membership and participation in union activities through the indiscriminate reliance on the provisions of article 161 of the Labour Code (enterprise requirements). The complainant alleges that when its members participate in an assembly and express their opinion regarding working conditions in the enterprise, they are dismissed the following day on the grounds of enterprise requirements and non-existent restructuring, with a view to intimidating workers into not expressing their opinion or participating in unions that belong to the complainant organization. Furthermore, the complainant organization alleges that, following the collective bargaining procedure entered into by two of its member unions (the first and second unions of the Antofagasta carbonate and lithium hydroxide plants), which concluded with an agreement in May 2013 with the mediation of the labour inspectorate, and after the union members’ immunity had expired, 36 workers were dismissed progressively at the beginning and the end of each shift to intimidate the remaining workers (the complainant provides many records of conciliation meetings before the labour inspectorate in which dismissed workers allege the unjustified application of the provisions under article 161 of the Labour Code). The complainant adds that in 2012, another member union in the federation (the Trade Union of Nueva Victoria de Iquique) had been subject to the same treatment, whereby 28 union members were dismissed once their trade union immunity for collective bargaining expired. The complainant considers that, although the enterprise relies on the clause on enterprise requirements, these are measures of anti-union discrimination against officials and trade unions that report bad practices. Lastly, the complainant reports that in the Salar del Carmen worksite, workers were threatened with dismissal if they refused to transfer to another union, which is what happened to the workers who did not (the complainant provides as an example the dismissal of three union members and notes that the workers who did transfer to another union retained their jobs). The complainant organization alleges that, as a result of these dismissals, in Salar del Carmen the union officials are the only workers who have remained in their unions.
5. 252. Fourth, the complainant alleges various instances in which the enterprise has not complied with the collective agreement in relation to: the obligation to provide work clothing for its members (using sizing problems as an excuse for not providing workwear); the provisions on wages (non-compliance and unilateral amendments); and the payment of sick leave.
6. 253. Fifth, the complainant alleges that the enterprise implemented a “General Role Target Compliance Bonus” with a view to impeding the free exercise of the right to strike, by making payment of the bonus conditional on collective bargaining taking place early and on an unregulated basis. The complainant points out that the possibility of recourse to strike action is an element of regulated collective bargaining. Trade union organizations are entitled to bargain collectively within a stipulated period (40 to 45 days) prior to the expiry of a collective agreement, and as part of such bargaining, workers can vote on whether they will accept the last offer made by the employer or take strike action (this is not a possibility in early, unregulated bargaining). The complainant alleges that introducing a bonus contingent on early, unregulated bargaining violates the exercise of freedom of association by limiting the possibility of resorting to strike action. The complainant indicates that, as a result of this payment incentive, union representatives have felt obligated to enter into early, unregulated bargaining, under pressure from members who wish to receive the bonus. It adds that the bonus has even been paid in advance, on the condition that if early bargaining did not occur, the bonus paid would then be deducted from the worker’s earnings. The complainant organization indicates that this practice was reported to the labour inspectorate and that, on 18 January 2013, the Labour Court of Antofagasta ruled that the condition for the payment of the bonus was illegal and that the enterprise had committed anti-union practices by restricting the workers’ right to choose freely and voluntarily whether or not they wished to engage in regulated collective bargaining. The complainant organization adds that the enterprise filed an appeal against this ruling before the Court of Appeal.
7. 254. Sixth, the complainant reports that the enterprise is constantly questioning union work and excludes its federation from dialogue relating to the adoption of measures affecting all workers. In this regard, the complainant indicates that, in order to come to an agreement on the aforementioned bonus, the enterprise met with two other federations but, in discriminatory manner, did not invite the complainant. Furthermore, the complainant alleges that a supervisor has constantly discredited its members and officials, setting managers against workers by making untrue and distorted statements and disclosing confidential information. It indicates that this allegation was reported to the labour inspector.

B. The Government’s reply

1. 255. In its communication of 26 February 2015, the Government transmitted the observations of the Labour Directorate, of the Ministry of Mining and of the SQM enterprise in response to the complainant’s allegations.
2. 256. As regards the allegation of the unilateral change to a tacit clause established through the ongoing practice of granting and paying union leave exceeding the minimum legal amounts, the enterprise denies any discriminatory treatment. The enterprise recognizes that, for a long time, it granted union leave exceeding the legal minimum and that it covered the costs of the leave. The enterprise indicates that as a result of this practice, many union officials had stopped performing their work duties and that it had therefore decided to end the practice and, without any discrimination, require that all union officials effectively perform their duties. The Government reports that, in the complaint filed on 16 May 2013 by three officials of a member union of the complainant organization, the Provincial Labour Inspectorate ruled that there was evidence of anti-union practices and, after legal action was taken, the proceedings were concluded on 10 March 2014 through conciliation. Under these conciliation proceedings, the parties agreed that: (i) union officials would thereafter only use union leave in accordance with the provisions set out in the Labour Code, without prejudice to union leave established under collective agreements; (ii) union leave taken until that time which exceeded the legal minimum would not be considered as unjustified absences, and would not result in sanctions or affect the payment of wages; and (iii) full effect would be given to the communications sent by the enterprise regarding the use of union leave. Moreover, the President of the complainant organization, Mr Nelson Pérez, reached these same agreements with the enterprise through a mediation agreement on 8 April 2014. These mediation proceedings also considered the complaint filed by the president of the complainant organization, alleging that the enterprise was not assigning him his contractual work, or the necessary means to perform it; the parties agreed under the mediation agreement that the enterprise would assign Mr Nelson Pérez his contractual work, and provide the other means to enable him to access the workplace to perform his duties.
3. 257. Concerning the allegations of dismissals of union members and officials on account of their union membership and participation in union activities through the indiscriminate application of the provisions of article 161 of the Labour Code (enterprise requirements), the Government transmits the enterprise’s observations, which indicates that the dismissals were to adjust to business requirements. The enterprise recognizes that in 2013, it reduced its staff from 5,700 to 4,600 direct employees, having paid the respective compensation to those dismissed, and that in the disputes arising from those dismissals, the courts had ruled in favour of the enterprise in some cases and in favour of the workers in others (no further details are provided regarding the court proceedings in question). The Government provides an information table regarding the handling of the complaints filed by the complainant organization, including references to two complaints for the indiscriminate or unjustified use of the provisions of article 161 of the Labour Code where it is indicated that no records had been found for their registration.
4. 258. As regards the allegations of non-compliance with the collective agreement, the information table provided by the Government regarding the handling of the complaints filed by the complainant organization refers to three complaints for non-compliance with the collective agreement and lists all the complaints that were investigated and which resulted in the issuance of fines.
5. 259. As to the allegation of the use of a bonus to encourage early, unregulated collective bargaining and to impede the exercise of the right to strike, the enterprise declares in its observations that the bonus had been paid since 2004 and that it had been analysed by the enterprise and all of the workers’ organizations, none of which had interpreted it as an attack on freedom of association, and that the enterprise had never prevented or impeded regulated collective bargaining. The Government indicates that: (i) the allegation was submitted to the courts, which ruled in January 2013 that the enterprise had committed anti-union practices by making the payment of the bonus conditional on workers engaging in unregulated bargaining, ordered the enterprise to pay a fine of 150 monthly tax units and stated that the enterprise should restrict the payment of the bonus to objective circumstances relating to the performance of the enterprise, thereby excluding conditions relating to collective bargaining; and that (ii) the enterprise filed an appeal for annulment before the Antofagasta Court of Appeal, which was dismissed, followed by an appeal for the unification of judicial precedent before the Supreme Court, which was declared inadmissible. The Government concludes, therefore, that the court decision upheld the main complaint submitted by the complainant to the Committee and states that the decision ordering the enterprise to pay a fine was registered by the Labour Directorate and published in national journals.
6. 260. As regards the allegations of the constant questioning of trade union work and the exclusion of the complainant organization from discussions relating to the adoption of measures affecting all workers, the Committee notes that, in general, the enterprise indicates that its matrix structure enables constant interaction between the enterprise and its workers and their representatives, and that it applies an “open door” policy equally to everyone. As for the establishment of the bonus, the enterprise indicates that it was analysed in detail and without discrimination by the enterprise and all of the trade unions and federations, including the complainant organization. As to the allegation of constant efforts by a supervisor to discredit workers, setting their managers against them, the Government indicates that the competent authority invited the union officials to a meeting on 21 March 2013 and that, in the meeting that they held with the lawyer handling the case, they indicated that the document containing said allegation should be taken as a statement rather than as a complaint.
7. 261. The Government ends by highlighting that, as is apparent from the information supplied and the actions taken, the acts reported by the complainant organization were penalized by the labour inspectorate and the competent courts.

C. The Committee’s conclusions

1. 262. The Committee observes that the complaint concerns allegations of restrictions on the access of the President of the complainant organization to workplaces, unilateral reductions and discrimination in relation to union leave, non-compliance with collective agreements, anti union dismissals, exclusion and questioning of trade union work and the use of a bonus to promote early, unregulated collective bargaining and to impede the exercise of the right to strike.
2. 263. As regards the allegation that the president of the complainant organization was denied access to the mining sites of the SQM enterprise, the Committee observes that the complainant organization provides no further information in this regard and that neither the Government nor the enterprise have responded. The Committee can only observe that, under the mediation agreement of 8 April 2014, signed by the enterprise and the president of the complainant organization, it was agreed that the enterprise would assign him his agreed work, and provide the means to enable him to carry out his professional activities (without specifically addressing the allegation of the denial of access to the various mining sites in his capacity as trade union leader). The Committee wishes to recall the principle by which “workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function” [see Digest of decisions and principles of the Committee of Freedom of Association, fifth (revised) edition, 2006, para. 1104]. The Committee requests the complainant organization to provide additional information to the Government concerning this allegation, so as to enable the Government to investigate should the concern persist. The Committee further invites the Government to obtain information in this respect from the enterprise through the employers’ organization concerned, and requests the Government to keep it informed in that regard.
3. 264. As regards the allegation of unilateral and discriminatory change in the practice of granting of union leave, the Committee notes that, according to the information provided by the Government, the parties decided under court conciliation procedures and mediation that union leave would only be used in accordance with the provisions set out in the Labour Code, without prejudice to provisions on union leave in collective agreements; that union leave taken until that date exceeding statutory leave would not be considered as unjustified absences, and would not result in sanctions or affect payment of wages, and that full effect would be given to communications sent by the enterprise regarding the use of union leave.
4. 265. As to the allegations of many dismissals of union members and officials on account of their union membership and participation in union activities, through indiscriminate reliance on enterprise requirements, and which, according to the complainant organization, have resulted in a considerable reduction in its membership, the Committee notes the enterprise’s explanation that the dismissals were to adjust to business requirements and that the disputes arising from them had gone before the courts, which had found in favour of the enterprise in some cases and in favour of the workers in others. The Committee regrets that, despite the gravity of the allegations, beyond providing the observations made by the enterprise, the Government has not provided further information on these allegations, or on the proceedings before the competent authorities in this regard, only indicating that no records had been found for the registration of two complaints. Furthermore, the Committee wishes to recall the principle that the “application of staff reduction programmes must not be used to carry out acts of anti-union discrimination” [see Digest, op. cit., para. 796]. The Committee urges the Government to provide detailed information regarding the handling of these allegations, including any relevant administrative or court decisions, expecting that, if acts of anti-union discrimination have been committed, adequate compensatory measures and sufficiently dissuasive sanctions are imposed. The Committee invites the complainant organization to provide any additional information that it may have in connection with these proceedings, including any legal action taken in that regard.
5. 266. As to the allegations of non-compliance with the collective agreement, the Committee notes that the Government indicates that inquiries have been carried out into the three complaints filed and that they all resulted in the issuance of fines. The Committee expects that the collective agreement is now being fully respected.
6. 267. With regard to the allegations that a bonus was used to encourage early, unregulated collective bargaining and to impede the exercise of the right to strike, the Committee notes that a court ruling of January 2013 found that the enterprise had committed anti-union practices by making the payment of the bonus conditional on workers engaging in unregulated bargaining, ordered the enterprise to pay a fine of 150 monthly tax units (equivalent to approximately US$9,000), and stated that the payment of the bonus should be restricted to objective circumstances relating to the performance of the enterprise, thereby excluding conditions relating to collective bargaining. The Committee has not received any information from the complainant to indicate that the court ruling has not been fully applied.
7. 268. Concerning the general allegations that the enterprise constantly questions trade union work and excludes the complainant organization, the Committee observes that they are at odds with the observations made by the enterprise, which claims that it is in constant interaction with workers and their representatives, and that it applies an “open door” policy equally to everyone. The Committee further observes from the Government’s indications that many of the acts reported by the complainant were penalized by the Provincial Labour Inspectorate of Antofagasta and by the competent courts, and invites the Government to take the necessary initiatives to enhance dialogue between the enterprise and the complainant organization, with a view to preventing similar disputes in the future and promoting the exercise of freedom of association, and to keep it informed in that regard.
8. 269. As regards the allegation of constant efforts by a supervisor to discredit workers, setting their managers against them, the Committee notes that, according to the Government, the union officials have indicated that the communication containing that allegation should be considered as a statement rather than as a complaint. In the absence of further information or evidence, unless the complainant organization provides sufficient additional information reaffirming and substantiating this allegation, the Committee will not pursue its examination of this allegation.

The Committee’s recommendations

1. 270. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant organization to provide additional information to the Government concerning the allegation that its president has been denied access to the mining sites of the enterprise, so as to enable the Government to investigate should this concern persist. The Committee also invites the Government to obtain information in this respect from the enterprise through the employers' organization concerned, and requests the Government to keep it informed in that regard.
   • (b) While acknowledging the efforts made by the competent authorities to resolve the issues relating to trade union leave, the Committee urges the Government to provide detailed information regarding the handling of the allegations of anti-union dismissals through indiscriminate reliance on the provisions of article 161 of the Labour Code, including any relevant administrative or court decisions, expecting that, if acts of anti-union discrimination have been committed, adequate compensatory measures and sufficiently dissuasive sanctions are imposed. The Committee invites the complainant organization to provide any additional information that it may have in connection with these proceedings, in particular any legal action taken in that regard.
   • (c) The Committee invites the Government to take the necessary initiatives to enhance dialogue between the enterprise and the complainant organization, with a view to preventing similar disputes in the future and promoting the exercise of freedom of association, and to keep it informed in that regard.