Definitive Report - Report No 4, 1953

Case No 10 (Chile) - Complaint date: 01-JAN-51 - Closed

A. Complaint presented by the Committee for Trade Union Unity

• Analysis of the Complaint
  52. 52 The complainant makes the following allegations:
      • (a) Persons are detained on political grounds in several American countries.
      • (b) Chilean railway workers are held in custody for participation in strikes although it has been proved that they did not so participate.
  53. Analysis of the Reply
  53. 53 In its reply, the Chilean Government presented observations only on the second allegation. It maintains that, consequent upon an illegal strike organised in the national railway industry, the military authorities responsible for the maintenance of essential services brought certain workers before the ordinary courts on charges of illegal activities. Before rendering judgment, however, the courts dismissed the matter and released the accused persons.
• Conclusions
  54. 54 The Committee recommends the Governing Body to dismiss the matter for the following reasons:
      • (a) In demanding, without giving any details, the intervention of the Commission on behalf of political prisoners in America, the complainant has formulated a charge which, in the opinion of the Committee, does not directly bear on the exercise of trade union rights and which, therefore, falls outside its competence.
      • (b) With respect to the second request, concerning the liberation of railway workers held in custody on the pretext--false, in the view of the complainant - that they had participated in an illegal strike, the Committee, while recognising that this allegation concerns the exercise of trade union rights, nevertheless considers that, since the workers were released by the court, the allegation has no further purpose.

B. Complaint presented by the World Federation of Trade Unions

• Analysis of the Complaint
  55. 55 The complaint presented by the World Federation of Trade Unions concerns the Chilean Law for the Permanent Defence of Democracy.
  56. 56 Firstly, the complainant alleges that certain trade union leaders, including Mr. Bernardo Araya, Secretary-General of the Chilean Labour Confederation, were arrested and imprisoned by virtue of this law.
  57. 57 Secondly, the complainant challenges certain articles of the Law for the Permanent Defence of Democracy, in particular Articles 29, 32 and 37 thereof. The complainant alleges that by virtue of Article 29, workers deprived of their voting rights or who are members of proscribed political parties may not belong to trade unions ; by virtue of Article 32, the President of the Republic is required to approve union budgets exceeding the sum of 100,000 pesos ; by virtue of Article 37, the public authorities are authorised to intervene in the administration of trade union funds.
• Analysis of the Replies
• Analysis of the First Reply of the Chilean Government (Letter of 5 November 1951)
  58. 58 The Chilean Government, in its first reply, denies that the complaints have any foundation and puts forward, in particular, the following reasons
  59. 59 By the terms of Article 29 of the Law in Defence of Democracy there may be excluded from trade unions criminals, persons convicted of subversive activities, those who have been deprived of the right to vote because of the fact that they are members of a group seeking to institute a totalitarian or tyrannical system or those conspiring against the sovereign independence of the State. Only the ordinary courts are empowered to deprive a person of the right to vote.
  60. 60 By Article 32 of the same Law, the President of the Republic must approve the budget concerning the investment of funds which a trade union receives from its participation in the profits of an undertaking when the budget exceeds 100,000 pesos. However, this budget is not to be confused with the normal trade union budget. In the Government's view, these provisions do not restrict freedom of association but are intended to ensure that the funds shall genuinely be used for trade union purposes.
  61. 61 Under Article 37 of the Law, the Director-General of Labour, in order to safeguard the interests of a trade union or in the absence or disability of the trade union president or treasurer, may make an official responsible for the management of trade union property in accordance with statutes and decisions adopted by the union general meeting. This intervention is temporary and exceptional. The measure has been applied only four or five times. At the present time no union is affected by these provisions.
  62. 62 Certain persons, including a number of union leaders have been proceeded against in connection with offences punishable under the Law in Defence of Democracy. This fact has no connection with their trade union activities. It is for the ordinary courts to judge them.
• Request for Supplementary Information
  63. 63 At its first session (January 1952), the Committee decided to ask the Director-General to obtain further information from the Chilean Government before making its recommendations to the Governing Body and to report more fully on the case when this information has been received.
  64. 64 The request for further information bore on the Chilean Government's interpretation of the phrase personas declaradas reos o condenadas por delitos sancionados por el Titulo I de este texto, in Article 29 of the Law for the Permanent Defence of Democracy, and also of the provision contained in Article 37 of the same Law, authorising the General Directorate of Labour to appoint an official to act on behalf of the chairman or treasurer of a trade union, not only in cases of absence of these persons, but also " whenever it deems it necessary for safeguarding the interest of the trade unions ".
• Analysis of the Second Reply of the Chilean Government
  65. 65 By letter of 18 March 1952, the Chilean Government transmitted to the Director-General the further information requested by the Committee.
  66. 66 In this letter, the Government states, with reference to the first point, that the term declarada reo has the same meaning as the term actualmente procesado, and that both mean " charged with ". The state of a person charged with a crime or misdemeanour is purely temporary. By virtue of Article 29 of the Law for the Permanent Defence of Democracy, it entails suspension of the right to belong to a union, and by virtue of Articles 376, paragraph 4, and 605, paragraph 5, of the Labour Code, it entails prohibition from membership on the executive committee of a trade union or on a conciliation board having to deal with collective labour disputes. The Government further states that Article 29 contains a final provision whereby persons whose right to belong to a trade union has been suspended nevertheless retain their right to share in the profits dealt with in Article 402 of the Labour Code and, if they pay the prescribed dues, to enjoy all advantages of a cultural, educational or co-operative character or by way of mutual solidarity or insurance provided by the trade union.
  67. 67 With respect to the second point (interpretation of Article 37), the Government emphasises that the appointment of an official to replace the chairman or treasurer of a trade union in cases other than those of absence of these persons is resorted to only when it becomes necessary to protect the interests of the trade union, and that the official appointed is obliged to conform to the relevant laws and regulations and to the rules of the trade union concerned in the management and investment of the property of the trade union. In particular, he must observe the regulations laid down in Article 34 of the Law for the Permanent Defence of Democracy, which provide for the regular preparation of statements relative to the movement of the moneys and for the transmittal each six months to the competent labour inspectorate of a copy of the balance sheet. The appointment of the official is in any case only temporary, since it ends with the disappearance of the conditions motivating his appointment. Furthermore, such intervention on the part of the General Directorate of Labour is not new, and represents no more than the application to a concrete case of the supervisory authority delegated to this ministerial department by law. Article 383, paragraph 2 of the Labour Code provides that " the trade unions shall be subject to supervision by the General Directorate of Labour and shall supply the information which they are requested to supply, in conformity with the provisions of the regulations ".
• Conclusions
  68. 68 The Committee has reached the following conclusions with regard to the different allegations:
• Allegation relating to the Arbitrary Arrest of Trade Union Leaders
  69. 69 With regard to this first allegation, the Committee has reached the conclusion that, no details being furnished by the complainants concerning the reasons for these arrests, the complaint does not contain the facts necessary to enable it to decide whether the arrests of the persons concerned were actually connected with their trade union activities.
• Allegation relating to the Supervision of Trade Union Funds (Article 32 of the Law for the Permanent Defence of Democracy)
  70. 70 With regard to this second allegation also, the Committee has reached the conclusion that the complainants have not furnished sufficient proof to substantiate their statement that this Article infringes trade union rights. The Article in question provides for certain supervision by the public authorities of the funds of works unions, which funds are composed of moneys received by these unions as a share in the profits of the undertaking. In the light of the reply of the Government, it appeared to the Committee that this provision does not bear on the ordinary budget of workers' organisations but on the special budget of works unions, which is entirely defrayed by moneys derived from the participation of the works unions in the profits of the undertaking. Further, the Committee found that Article 32 does not bear on occupational organisations properly so-called but on certain bodies peculiar to Chilean law which are called works unions which, in fact, are more in the nature of works committees than trade unions.
• Allegation concerning Restrictions on the Right of Workers to form Trade Unions and to Belong to Them (Article 29 of the Law for the Permanent Defence of Democracy)
  71. 71 The complainant alleges that by virtue of Article 29 of the Law for the Permanent Defence of Democracy workers who are members of certain proscribed political parties and for this reason deprived of their voting rights may not belong to trade unions.
  72. 72 In its reply, the Government maintains that by virtue of this Article membership in trade unions is prohibited to persons considered criminal or who have been convicted of offences against the democratic régime, as well as persons who have been stricken from the electoral rolls by reason of their membership in subversive groups or parties which have been proscribed. The Government nevertheless points out that these persons are entitled to their share in the profits of the undertaking and, subject to the condition that they continue to pay their dues, to the material advantages provided by the trade union under its rules.
  73. 73 At its January session the Committee referred to the text of Article 29, which is framed as follows:
• Persons of both sexes who have attained the age of 18 years and are employed in one and the same undertaking or works or are engaged in the same employment or occupations or in similar or allied employments or occupations, whether intellectual or manual, shall have the right to organise themselves in unions.
• Provided that no person who has been convicted of, or sentenced for, any offences punishable under head 1 of this text, or who has been excluded from the electoral rolls or municipal registers, shall belong to a trade union.
• Notwithstanding the above proviso, such persons shall be entitled to share in the profits as provided in Article 402 of the Labour Code and, if they pay the prescribed dues, they shall enjoy all advantages of a cultural, educational or co-operative character, or by way of mutual solidarity or insurance provided by the trade union under these bye-laws and regulations.
  74. 74 In examining this text, the Committee noted in the second paragraph the phrase " persons convicted of ... any offences " (personas declaradas reos), and raised the question whether guilt could be presumed even before judgment had been pronounced. Accordingly, the Committee asked the Chilean Government for an explanation of the precise meaning of this phrase.
  75. 75 It appears from the reply of the Chilean Government that the difficulty encountered by the Committee is basically one of language. Literally, it explains, the expression persona declarada reo is translated as " person declared guilty ". Actually, it means " person charged with ", as appears from Article 274 of the Code of Penal Procedure, which is framed as follows:
• Having examined the accused, the examining magistrate will charge him (lo declaradá reo) and bring him to trial if the examination shows : (1) that he has committed the offence which gave rise to the enquiry, or (2) that it may reasonably be presumed that he has participated in the commission of this offence ...
• It follows that a person placed under charges (declarada reo) in the course of the preliminary investigation of a case, but not convicted, is legally prohibited from belonging to a trade union so long as he remains under charges. This, however, is a purely temporary state. Consequently, the right to belong to a union is merely suspended. The person concerned recovers his right in the case of acquittal or suspension of sentence, losing it only if convicted. The Government adds that the legislation concerning penal procedure, which applies to offences under the Law for the Permanent Defence of Democracy, fully protects the accused persons. On the one hand, the legislature, in order to avoid the pressures which might be brought to bear in a case of this nature, has entrusted the preliminary investigation of the case to a member of a higher court. On the other hand, it has limited the preliminary investigation to eight days, which period may not be extended except in particular cases by the president of the court.
  76. 76 It would appear from the reply of the Government that a person is not deprived of the right to belong to a union unless convicted of an offence under the Law for the Permanent Defence of Democracy, and that the term persona declarada reo does not mean that a person is declared guilty, but merely that he is placed under charges, which condition does, in fact, entail the suspension of the right to belong to a union but not its less.
  77. 77 While emphasising that it may appear unusual that a person merely charged with an offence, but not convicted thereof, may be deprived of the right to belong to a trade union and expressing the hope that this matter may be further considered by the Chilean Government, the Committee considers that, having regard to the explanation furnished by the Government, this point does not call for reference to the Fact-Finding and Conciliation Commission.
• Allegations concerning Intervention by the Public Authorities in the Administration of Trade Unions (Article 37 of the Law for the Permanent Defence of Democracy)
  78. 78 The complainant alleges that the Division of Direction of Labour is authorised, under Article 37 of the Law for the Permanent Defence of Democracy, to administer the funds of trade unions and to dispose of them freely.
  79. 79 The Government maintains that this Article authorises the General Directorate of Labour to appoint a public official to administer trade union funds whenever it deems it necessary for the protection of the interests of the trade union, or in the case of absence or disability of the president or treasurer of the union. The Government points out that the measure is purely temporary and exceptional in nature and that it can only be employed in conformity with the provisions of the rules of the trade union and of the budgetary plans adopted by the general assembly of the union.
  80. 80 The text of this provision is framed in the following terms:
• The General Directorate of Internal Revenue shall, when requested so to do by the General Directorate of Labour, assist in the inspection of the accounts, administration or investments of the trade unions and report to the General Directorate of Labour on the results.
• Whenever it deems it necessary for safeguarding the interests of the trade unions, or in cases when the president or treasurer (or both) of a union is absent, the General Directorate of Labour may appoint a labour officer or internal revenue officer to act on behalf of the chairman or treasurer (or both) in the administration and investment of the union funds, subject to the relevant laws and regulations and to the rules of the union.
  81. 81 In examining this text at its first session the Committee decided to ask the Chilean Government for details concerning the precise interpretation of this provision.
  82. 82 In its reply the Government emphasised that the General Directorate of Labour may only intervene when it is necessary for the protection of the interests of the trade union itself. For this reason, the measure is temporary and remains in force only while the reasons which made its use necessary subsist. For the same reason, the official appointed to administer trade union funds must conform, not only to the provision of the bye-laws and regulations of the trade union, but also to those of Article 34 of the Law for the Permanent Defence of Democracy. Under the provisions of this Article, he must make public the movement of the moneys, in order to make possible the supervision provided for by the rules of the trade unions, and establish the balance sheet at regular intervals. The Government further points out that this provision merely constitutes a concrete application of the general principle laid down in Article 383, paragraph 2, of the Labour Code, according to which trade unions and works unions are subject to the supervision of the General Directorate of Labour.
  83. 83 In presenting this allegation, the complainant appears to maintain that the provisions of Article 37 of the Law for the Permanent Defence of Democracy bring into question the right of workers' organisations to organise their administration in full freedom.
  84. 84 In its reply the Government argues that this right must be limited when it becomes a pretext under cover of which abuses are committed to the detriment of the trade union itself. Consequently, the Government should be empowered to intervene when this is necessary for the protection of the interests of the trade unions.
  85. 85 It appears from the details given by the Government that the intervention in question is subject to the fulfilment of a number of conditions intended to ensure that it is made in the sole interest of the trade union. Thus, before intervening, the General Directorate of Labour is required to request the General Directorate of Internal Revenue to verify the accounts, and inspect the administration and investment of the funds of the trade union. Only on report of the latter authority is the General Directorate of Labour authorised, if it deems it necessary for the protection of the interests of the trade union or in case of absence or disability of its responsible leaders, to make an official responsible for the administration and investment of the union funds. This intervention must be limited to economic administration and must not extend to trade union activities proper. In his administration, the official must conform to the rules of the trade union and to the decisions taken by its general assembly; he must act as though he were himself an elected leader of the union. Finally, the General Directorate of Labour is required to end the intervention when the causes which motivated it no longer exist.
  86. 86 It should be recalled that the Government in its first reply had already emphasised the entirely exceptional character of this measure, which has only been applied four or five times and is at present not applied at all.
  87. 87 The Committee has already pointed out in its first report the difficulty of the problems which arise in regard to the protection of trade union funds against misuse, and the Governing Body has approved the proposal that a full and objective study of the matter should be prepared. The present case is a further illustration of the difficulty and importance of these problems, but the Committee considers that, since in the present case the intervention is of a purely temporary and exceptional nature and has now ceased to be applied, this allegation does not call for further examination by the Governing Body pending the completion of the general study of the subject which is in preparation. The Committee wishes, however, to emphasise the possibilities of abuse entailed by such a procedure - however exceptional and temporary it may be - and feels that it would be desirable to consider amending this legal provision.

The Committee's recommendations

1. 88. In regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to decide that the complainants have not presented sufficient evidence to justify reference of the matter to the Fact-Finding and Conciliation Commission ;
   • (b) to suggest that the Chilean Government may wish to re-examine certain Articles of the Law for the Permanent Defence of Democracy, in particular Articles 29 and 37, with a view to determining whether any modifications of them are desirable in the light of the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948, and the Right to Organise and Collective Bargaining Convention, 1949.