Definitive Report - Report No 67, 1963

Case No 305 (Chile) - Complaint date: 26-JUN-62 - Closed

1. 99. The complaint of the World Federation of Teachers' Unions is contained in a communication dated 26 June 1962. The Government of Chile forwarded its observations by a letter dated 3 September 1962.
2. 100. Chile has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 101. The complainants allege that teaching staff in Chile are denied the right to belong to trade unions, and in support of their allegation they quote Part III, paragraph 6, section 166 of the Administrative Statutes (Legislative Decree No. 338 of 5 April 1960) as stipulating that:
   • wage-earning and salaried employees in the service of the State shall not have the right to form or belong to any union, nor to form brigades, teams or operational groups which are essentially political in character. Nor shall they have the right to go on strike, nor to suspend or interrupt their work completely or partially in any manner, nor to commit any act of such nature as to interfere with the normal functioning of the service to which they belong.
2. 102. In its reply of 3 September 1962 the Government states that the provision referred to by the complainants is indeed in force in Chile, and that it is applicable not only to the teaching profession but to all wage-earning and salaried employees in the service of the State, and adds that in view of the existence of this provision the Government has no other course but to comply with it. The Government goes on to state that, notwithstanding the existence of the measure in question, teachers are in fact organised in the Chilean National Teachers' Association and other bodies which carry on an active campaign on behalf of their members, even going so far as strike action.

B. B. The Committee's conclusions

1. 103. The Committee observes that another provision in Chilean law-namely section 368 of the Labour Code-lays down that:
   • wage-earning and salaried employees in the service of the State or municipal authorities or belonging to state undertakings shall not have the right to form a union or to belong to any union.
2. 104. In the light of the expressly stated ban on the forming of trade unions by workers in the service of the State contained in both the Administrative Statutes and the Labour Code, the Committee feels impelled, bearing in mind the principle laid down in other cases I regarding the importance of the right of state and local government employees to constitute and register trade unions, to point out that these provisions of Chilean legislation are incompatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to form organisations of their own choosing without prior authorisation. This principle has been embodied by the International Labour Conference in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which reads as follows:
   • Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
3. 105. The Committee, while observing that according to the Government's statement Chilean teachers are in fact organised into an association whose activities may be said to correspond to those of a trade union, reaffirms the opinion expressed on earlier occasions that the right of workers to form freely organisations of their own choosing cannot be deemed to be operative unless it is fully recognised and respected in law and in fact.
4. 106. Bearing in mind also that when on a previous occasion it had before it allegations similar to those now being considered and also relating to Chile, it drew the attention of the Government to the incompatibility of section 368 of the Chilean Labour Code with the principle that workers, including those employed by the State, should have the right to establish organisations of their own choosing without prior authorisation, the Committee considers that the Chilean Government should be requested to consider the possibility of repealing those provisions under present law which prohibit employees of the State from establishing and belonging to trade unions.

The Committee's recommendations

1. 107. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government of Chile once again to the importance which it attaches to the principles that workers, without distinction whatsoever, including those employed by the State, should have the right to establish organisations of their own choosing without prior authorisation, and to request the Government to consider the possibility of repealing the provisions of section 368 of the Labour Code and section 166 of the Administrative Statutes, which are incompatible with the foregoing principle.