Interim Report - Report No 187, November 1978

Case No 823 (Chile) - Complaint date: 12-AUG-75 - Closed

369. The last report sent by the Government of Chile under article 19 of the ILO Constitution concerning the measures taken to give effect to the recommendations of the Fact-Finding and Conciliation Commission was examined by the Committee and the Governing Body at their May-June 1978 Session. On this occasion the Committee also examined Case No. 83.3 It is appropriate to recall that the Committee examined the matters at issue taking account of the information gathered by the representative of the Director-General during a direct contact mission between 8 and 15 May 1978.

1. 369. The last report sent by the Government of Chile under article 19 of the ILO Constitution concerning the measures taken to give effect to the recommendations of the Fact-Finding and Conciliation Commission was examined by the Committee and the Governing Body at their May-June 1978 Session. On this occasion the Committee also examined Case No. 83.3 It is appropriate to recall that the Committee examined the matters at issue taking account of the information gathered by the representative of the Director-General during a direct contact mission between 8 and 15 May 1978.
2. 370. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 371. At the May-June 1978 Session the Governing Body, on the Committee's recommendation, requested the Government to continue to supply information on the evolution of the trade union situation by 15 October 1978 and its observations on the allegations made in Case No. 823.
2. 372. Since it last examined the case, the Committee has received communications from the International Confederation of Free Trade Unions (6 September, 24 and 30 October 1978), the World Federation of Trade Unions (9, 21, 25 September and 31 October 1978), the World Confederation of Labour (24 and 31 October 1978), the International Union of Workers in Agriculture, Forests and Plantations (24 October 1978), the International Union of Public Service and Allied Workers (24 October 1978), the International Union of Building, Wood and Construction workers (25 October 1978), the Latin American Central of Workers (26 October 1978), and the International Union of Textile, Clothing, Leather and Fur Workers (30 October 1978). The Government sent, by a communication dated 30 October 1978, the text of certain statements made by the Minister of Labour. The Government also sent a report dated 31 October 1978 and a communication dated 6 November 1978. Because of the late date on which these communications were received the Committee was unable to examine these at its present session. It proposes to examine the matters raised in these communications in a more detailed manner at its next session.
3. 373. Because the new allegations submitted by the new organisations within the context of Case No. 823 cover various important aspects of trade union life, the Committee decided to examine the questions relating to the evolution of the trade union situation and the case before it concerning Chile in a single document.
   • I. Question of the adoption of new trade union legislation
4. 374. In its previous report the Government had stated that Book II of the draft Labour Code, which deals with trade union rights, was being examined by the Council of State, which had reported on the question around the middle of 1977. The Government further indicated that the ministry of Labour was finalising the text of these provisions. In this connection the authorities told the representative of the Director-General that the promulgation of new trade union legislation was part of a process of evolution of which the first stage would be the adoption of a new system of collective bargaining.
5. 375. At its May 1978 Session, the Committee, while taking note of the developments in the trade union situation and, in particular, of the Government's intention to restore collective bargaining, pointed out that a system of collective bargaining presupposed the absence of restrictions on the legitimate activities of trade union organisations, especially as regards their internal administration. Such a system presupposed, in particular, that trade union organisations should be able freely to call meetings and should be represented in the course of negotiations by leaders who were freely elected by their members. In these circumstances, the Governing Body, on the recommendation of the Committee, pointed out to the Government that one of its priorities should be the repeal of Legislative Decree No. 198 and the promulgation, as soon as possible, of legislation in conformity with the principles of the ILO.
6. 376. In a statement made on 27 October 1978 the Minister of Labour reaffirmed that freedom of association was one of the main orientations in the new institutional labour system and that there could only be restrictions of this freedom on grounds affecting the general interest. The new concept of trade unionism, stated the Minister, fully recognises the right of occupational organisations to protect their legitimate interests provided that they adopt a responsible attitude. This attitude necessarily implies that their interests are compatible with the common good, a fact which eliminates the systematic development of social conflict, but which, on the other hand, implies the seeking of solutions to social conflicts by means that are peaceful and just.
7. 377. The minister announced that the draft Labour Code was nearing completion and that the Government had adopted a legislative decree which guarantees full freedom of workers to establish trade unions. In future, the setting up of a trade union would be decided by more than 30 per cent of established workers in an establishment or enterprise. This percentage should not represent less than 25 workers. Non-unionised workers will be represented by the works delegate and will contribute to the expenses connected with the collective agreement. The distinction that, up to now, existed between unions of workers and employees will be abolished. A special statute has been adopted for public servants.
8. 378. The Committee notes the statement that the draft Labour Code is nearing completion and that henceforth a legislative decree adopted by the Government guarantees freedom to workers to establish trade unions. The Committee hopes that it will be able to examine the provisions of the new Labour Code at its next session and that these will be in full conformity with the principles of freedom of association, and in particular, with the recommendations of the Fact-Finding and Conciliation Commission.
   • II. Trade union activities in the country
     • (a) Collective bargaining
   • 379. The Government had stated in its earlier report that the country's economic situation had considerably improved. Nevertheless, conditions were not yet suitable for the reestablishment of the normal collective bargaining machinery, which was to remain suspended until 1 March 1979. The Government further stated that a new system of collective bargaining was in an advanced stage of consideration. The system of automatically readjusting remuneration at quarterly intervals continued to be applied, as did the provisions of Legislative Decree No. 851 of 1975, which extended the scope of agreements in writing, collective agreements, arbitration awards and tripartite Committee decisions to all workers in the branch of activity concerned.
9. 380. With regard to the tripartite Committees, the Government referred to the information already supplied in November 1977 to the effect that their decisions were now accorded deliberative status. It confirmed that it was the task of the government representatives on these Committees to safeguard the general interest by preventing excesses prejudicial to the community. However, the role played by the State would gradually become more and more secondary.
10. 381. The Minister of Labour further told the representative of the Director-General that restoration of collective bargaining would perhaps take place in 1979 and that the provisions which would require to be taken to this effect were being studied. It was foreseen that in case the parties did not reach agreement, either directly or through mediation, recourse would be had to arbitration as a final solution. The arbitrators would be nominated by agreement between the parties or by independent bodies such as the courts.
11. 382. At its May 1978 Session, the Committee noted with interest the trend in favour of restoration of collective bargaining. Nevertheless, it pointed out that what seemed to be envisaged was that, in the absence of an agreement between the parties in the collective bargaining process, the dispute which would result would be dealt with by compulsory arbitration. In other words, recourse to strikes would be prohibited. The Committee recalled the recent statement made by the minister of Labour according to which recognition of the right to strike would also be examined within the framework of the process of normalisation. In this connection the Committee recalled that the right to strike constituted one of the essential elements whereby workers and their organisations might promote and defend their occupational interests. While a prohibition of the right to strike might be acceptable during collective bargaining or during the validity of a collective agreement or in the case of public servants or essential services, a general prohibition of the right to strike would be contrary to the principles of freedom of association.
12. 383. In his speech of 27 October 1978 the Minister stated that the country was preparing to restore collective bargaining in a new and modern way which would render it more effective in a really free society. According to the Minister, such progress had been made possible by the success with which the Government and the people of Chile have overcome the economic catastrophe in the country. Collective bargaining will take place at the level of the undertaking. The Minister also pointed out that the trade union elections would enable collective bargaining to take place with a more solid representation for Chilean workers.
13. 384. The Committee notes the statements made by the Minister of Labour regarding this question. These confirm the information already provided by the Government at the last session of the Committee. The Committee hopes that, when restoring collective bargaining, the Government will take account of the principles and considerations expressed by the Committee at its last session concerning compulsory arbitration for collective disputes in general, which would be contrary to the principles of freedom of association.
    • (b) Collective labour disputes
14. 385. Some of the complainant organisations referred to collective labour disputes which had recently taken place in Chile. For example, in a telegram of 6 September 1978, the ICFTU states that following a strike by the miners of the Chuquicamata copper mine, the authorities declared a state of siege in the region, arrested 13 workers and dismissed others.
15. 386. In its three communications of September 1978, the WFTU also refers to the situation in the Chuquicamata mining sector. The complainant organisation explains that, after two years of fruitless action to obtain higher wages, the workers of Chuquicamata submitted, on 8 August 1978, a list of the following social and economic demands: a 50 per cent increase in wages, an increase in the residence allowance, an increase in the production bonus and scholarships for children who were studying. The management of the public mining undertaking reacted by dismissing trade union leaders who had taken part in the assembly during which the list of demands had been approved. In protest against these measures and against the prices of meals in the undertaking, the miners began what has been known as the "canteen strike", refusing to take their meals in the canteens of the undertaking.
16. 387. Following this movement, the Government declared a state of siege throughout the province. This measure had various consequences, in particular the obligation to submit a duly justified written request for the holding of any meeting or assembly, to be presented 24 hours in advance to the Garrison Commander. Movements of persons within the province and leaving the province were controlled, as was entry to the mines, to which only the workers were allowed access. In addition, six workers were arrested and sent to a remote part of the country, and three others were placed under house arrest. The number of arrests increased, continues the WFTU, reaching 72 on 16 September. The complainants supplied a list of 35 persons who were arrested on charges of "political activism" and adds that further arrests have reportedly been made of miners who are presumed to be active in the Christian Democratic and Communist Parties. In addition, according to the WFTU, 300 miners have been threatened with dismissal.
17. 388. The WFTU reports that talks between the Government and the copper miners' leaders have been interrupted, and that the chairman of the CODELCO public copper undertaking did not attend the meeting with the trade union leaders, which was scheduled to be held in Santiago.
18. 389. Finally, the complainant organisation refers to a further "canteen strike" which is said to have been followed by about a thousand of the 3,500 workers of the Huachipato works of the Pacific Steel public undertaking for the purpose of obtaining a 50 per cent over-all increase in pay. This claim was presented to the undertaking a few months ago.
19. 390. The texts of the communications transmitted by the complainant organisations concerning this matter were sent to the Government, which transmitted certain information thereon in a report dated 31 October 1978. It states, in particular, that the dispute has been settled through negotiations and that the workers who were dismissed have been reinstated. In addition the workers who were arrested have been released.
20. 391. The Committee notes this information. It proposes to examine this question in a more detailed manner at its next session.
    • (c) Trade union elections
21. 392. Several complainant organisations, in particular the ICFTU, the WCL and the WFTU, sent, on 29, 30 and 31 October 1978, telegrams to the ILO protesting against the method employed by the Government in organising the trade union elections on 31 October 1978. The ICFTU and the WCL state that the 35,000 trade union leaders presently in office are unable to present their candidatures. According to the ICFTU this is a trick by the Government to gain control over the trade union movement. The WFTU considers that this measure violates trade union rights.
22. 393. The Director-General transmitted these recent protests of the complainants to the Chilean Government. In its communication of 6 November 1978 the Government provides the text of Legislative Decree No. 2376 concerning the change of trade union executive Committees by election, and of Legislative Decree No. 159 concerning these elections.
23. 394. The Minister, in his speech of 27 October 1978, had stated that free, direct and secret elections would take place in the unions in undertakings in the private sector on 31 October 1978. If, in the future, a minimum membership period of two years is required for participation in elections for trade union leadership, this time all unionised workers will be able to vote in their own organisations. The new executive Committee will consist of three persons.
24. 395. The Minister continued that, in order for these elections to constitute the start of a new phase of Chilean trade unionism, conditions of eligibility have been established in order to guarantee, in particular, the "depolitisation" of trade union life. To this end, there will be no formal presentation of candidates in these elections. Workers will be able to vote for any member of the union who has been at least five years in the undertaking (or two years if the undertaking has existed for less than five years). Those persons who have participated in acts of a party political nature, or who have been active in a political party or who have had party political or other responsibilities or who have represented a political party cannot be elected to office. In addition, no trade union leader actually in office can be re-elected in the course of these new elections. This last rule does not mean that the authorities are unaware of the work accomplished by the present leaders, but it has become necessary to promote a new generation of trade union leaders. Every trade union leader who does not fulfil the eligibility conditions will cease to exercise his functions. All questions concerning the lack of eligibility or the cessation of functions of trade union leaders will be dealt with by the Director of Labour, with a right of appeal to the courts mentioned in the legislative decree. The elections will take place in the presence of a labour inspector whose task will be to see to it that they take place in due form. The newly-elected leaders will hold office for a period of four years. Finally, the Minister indicated - referring to the employers - that the authorities would punish severely any attempt to prevent or in any way hinder the taking place of the elections. The Government, in its report dated 31 October 1978, confirms the statements made by the Minister.
25. 396. The Committee proposes to examine this question in a more detailed manner at its next session. It has, however, noted that the legislative decree on the elections contains provisions on ineligibility. It considers it appropriate to make certain preliminary comments on the matter. In principle, the lifting of the prohibition to hold trade union elections which was in force to date by virtue of Legislative Decree No. 198 of 1973, could signify progress, provided that the principles of freedom of association are respected including the right of workers freely to elect their representatives. The Committee would request the Government to transmit information concerning the reasons for maintaining these cases of ineligibility.
    • III. Measures affecting certain trade union officials and organisations
      • (a) Removal from office and dismissal of trade union leaders
    • 397. At its May 1978 Session the Committee examined complaints relating to the removal from office or dismissal of a number of trade union officials. The first concerned three officials of a copper miners' union (Milton Puga, Director of the Occupational Union of Employees in the Copper Mines of El Teniente; Juan Fincheira, Chairman of the same union and Deputy General Secretary of the Latin American Committee for Miners and metallurgy Workers; Carlos Arellano, Director of the same union); two officials of the National Confederation of Bank Associations of the State of Chile, namely the President, Andrés del Campo Hamel, and the Vice-President, Arturo Moreno Patiño; the President of the National Federation of Port Workers of Chile and the National Federation of Maritime Workers, Mr. Carlos Frez Rojo.
26. 398. The three trade union leaders of the copper workers and Arturo Latuz, director of the occupational union of Caletoras had also been dismissed from their jobs. In these cases it seems that the undertaking had recourse to one of the reasons for dismissal introduced in the legislation by Legislative Decree No. 930 of 1975, namely the participation in illegal acts provoking the absence of workers. The persons mentioned had been assigned to residence, and there had been a work stoppage or absenteeism on the part of certain of the workers of El Teniente (the measure of assignment to forced residence had been reported subsequently). The persons concerned had appealed to the labour court and the matter was still being dealt with. As a result of their loss of employment they had automatically lost their trade union responsibilities and had been replaced by new trade union leaders under the procedure provided for in Legislative Decree No. 198.
27. 399. At its May 1978 Session the Committee recalled that national legislation which laid down that all trade union leaders must belong to the occupation in which the organisation functioned might jeopardise the exercise of trade union rights. In fact, the dismissal of a worker who was a trade union leader could, by making him forfeit his position as a trade union official, affect the freedom of action of the organisation and the right of the workers to freely elect their representatives and might even encourage acts of interference by employers. Furthermore, the Committee considered that the cases relating to trade union leaders in the banking and maritime sectors pointed to the existence of discretionary intervention on the part of the administrative authorities in the internal affairs of trade unions which was incompatible with the principles of freedom of association.
28. 400. The Governing Body, on the recommendation of the Committee, requested the Government to intervene with a view to the reinstatement of those concerned in their trade union functions and, in the case of dismissal, in their employment, and to transmit the text of the judgement to be handed down in the cases of Juan Fincheira, Milton Puga, Carlos Arellano and Arturo Latuz.
29. 401. The Government states in its report dated 31 October 1978 that the four former trade union leaders in the copper industry reached an agreement with the management of the National Copper Undertaking before the Court of Rancagua. The Government annexes a copy of their agreement to its report. The Committee will examine this information at its next session.
    • (b) Dissolution of several trade union organisations
30. 402. Shortly before the session of the Committee, allegations were presented by several complainant organisations concerning the dissolution by the Government of certain trade union organisations. The communications sent to the ILO in this connection were transmitted to the Government, whose observations on the matter have not yet been received.
31. 403. The Committee has taken note of the provisions of Legislative Decree No. 2346 of 17 October 1978 (published in the Official Journal) concerning the dissolution of seven trade union organisations. The reasons set out in the decree indicate, in the first place, that it is the duty of the State to ensure that "intermediate institutions" act within the limits of their competence, and to protect citizens against activities which may lead, directly or indirectly, to the development of social strife or subversive doctrines that are contrary to the general interest. Secondly, it is stated that the conduct of those organisations mentioned in the legislative decree shows that their means of action or their objects coincide with Marxist principles or objectives. For this reason, the decree continues, these organisations have seriously and persistently distorted the nature of their functions to such a point that their existence and their functioning are incompatible with the necessity to safeguard national unity.
32. 404. Accordingly, the following are prohibited and considered as illegal organisations: the Ranquil Confederation, the United Confederation of Peasant Workers, the National Federation of Metallurgical Unions, the Occupational Union of Construction Workers of Santiago, the National Union of Textile and Clothing Workers, the Industrial Federation of Building, Wood and Construction Workers and the Industrial National Federation of Mineworkers. The organisations are dissolved and their legal personality removed. The same applies to their affiliates. Their assets are transferred to the State.
33. 405. Whatever the reasons invoked by the Government in the legislative decree dissolving these organisations, the Committee must point out that the procedure followed in these cases for the dissolution of these organisations is not compatible with the principle that workers' organisations should not be dissolved by administrative authority. The measures taken are of a particularly serious nature since affiliated organisations are also affected under the legislative decree, and their assets transferred to the state (article 4 of the decree). Accordingly, the Committee would request the Government to provide, as soon as possible, its observations on this aspect of the case.
    • IV. Civil liberties relevant to the exercise of trade union rights
34. 406. In its previous report the Government had stated that the state of siege had not been prolonged on 11 March 1978. The country was thus governed by the provisions relating to a state of emergency, which were more flexible than those providing for a state of siege. The Government had also stated that it hoped that it would be possible for the restrictions associated with the state of emergency to be eliminated to the extent practicable within the near future. The government authorities had stressed to the representative of the Director-General the importance which should be attached to the amnesty granted in accordance with Decree No. 2191 of 18 April 1978.
35. 407. At its June 1976 Session, the Governing Body, on the recommendation of the Committee, noted with interest the measures taken by the Government, especially as regards the amnesty, and expressed the hope that other measures would be adopted, as soon as possible, in order to fully establish the exercise of civil rights, thus permitting the return to a normal trade union situation.
36. 408. As regards the allegations concerning the detention or the disappearance of trade unionists or former trade unionists, the Committee, in May 1978, regretted that it had been unable to note from the information supplied by the Government that any progress had been made as regards the supply of the information expected concerning the persons mentioned in the present case who were said to have been detained or who had disappeared. Furthermore, the Committee noted the contradictions between the statements made by the Government and those made by the complainants who had supplied various details concerning the detention of numerous trade unionists or former trade unionists who had subsequently disappeared. The Committee also noted that a number of habeas corpus applications were being dealt with by the courts concerning persons who had disappeared and that the authorities would inform the ILO as to the full scope of these judicial procedures. In these circumstances, the Governing Body, on the recommendation of the Committee, requested the Government to continue its investigations in order to trace the missing persons and to transmit information on the results of the judicial proceedings that were taking place.
37. 409. In its report dated 31 October 1978 the Government provides information on 24 out of the 67 persons named in the latest list established by the Committee while noting this information the Committee wishes to request the Government to continue to supply information on the persons appearing on this list.

The Committee's recommendations

1. 410. In these circumstances the Committee recommends the Governing Body:
   • (a) as regards the adoption of new trade union legislation, to note that this legislation is nearing completion and to express the hope that the Committee will be able to examine this at its next session, and that it will be in full conformity with the principles of freedom of association;
   • (b) as regards collective bargaining, to express the hope that the Government, in restoring collective bargaining, will take account of the principles and considerations expressed by the Committee at its previous session concerning compulsory arbitration for collective disputes;
   • (c) as regards the allegations concerning collective labour disputes, to note that the Committee will make a more detailed examination, at its next session, of the information provided by the Government on this matter;
   • (d) as regards the allegations concerning the trade union elections, to draw the attention of the Government to the considerations set forth in paragraph 396 above; and to request it to transmit information concerning the reasons for fixing certain cases of ineligibility in the legislative decree on elections;
   • (e) as regards the allegations relative to the removal from office or dismissal of trade union leaders, to note that the Committee will, at its next session, examine the text of the judgement in the cases of Juan Fincheira, Milton Puga, Carlos Arellano and Arturo Latuz;
   • (f) as regards the allegations concerning the dissolution of trade union organisations, to point out that the procedure followed in these cases was incompatible with the principle that workers' organisations should not be dissolved by administrative authority, and to request the Government to provide its observations on this question as soon as possible;
   • (g) as regards the allegations concerning the detention or disappearance of trade unionists or former trade unionists, to note the information provided by the Government and to request it to continue to supply information on the persons appearing on the latest list established by the Committee in its 177th Report; and
   • (h) to take note of this interim report.

Z. ANNEX

• Latest information communicated by the Government on persons stated to have been arrested or said to have disappeared
  1. 1 Freed
• Guttierez, Ramurez Maria, leader, Metalworkers' Union
• The Government has found this person, residing at Camino La Sierra. He was at no time detained.
• Huaimquir Benairdes, Joel, National leader of the Federation of Copper Workers
• Set free by virtue of Decree No. 414 of 15 September 1976.
• Macaya Molina, Hector Ivan, Secretary of Textile Workers' Union of Oveja Tome
• Presently resides in department of Tome.
• Rodriguez Maya, Edmundo, former national President of Leather and Shoe Workers
• Has requested passport on 22.11.77 to travel to Germany.
  2. 2 Have left the country
• Araya Zuleta, Bernardo, former leader of the CUT
• Left country for Argentina, 7.4.76. His return to the country has not been registered.
• Berriós Cataldo, Linioyán, leader of National Association of Municipal Workers
• Left country for Argentina, 17.2.77. His return to the country has not been registered.
• Cepeda Marinkovic, Horacio, trade union leader
• Left country for Argentina, 6.1.77. Not detained. Present residence unknown.
• Cruz Diaz, Lisandro, trade union leader
• Left country for Argentina, 11.1.77. His return to the country has not been registered.
• Lazo Santander, Luis, former leader of Federation of Electrical Workers
• Left country for Argentina, 11.2.77. His return to the country has not been registered.
• Orellano Catalan, Juan, former leader of the Ranquil Federation
• Left country for Bolivia, 14.8.73. His return to the country has not been registered.
• Pereira Plaza, Reinalda, Trade union leader
• Left country for Argentina, 21.12.76. His return to the country has not been registered.
• Pinto Arroyo, Edras, trade union leader
• Left country for Argentina, 5.1.77.
• Pizzaro Molina, Waldo, leader, Textile Workers' Union
• Left country for Argentina, 21.12.76. His return to the country has not been registered.
• Portilla Portilla, Armando, leader, Textile Workers' Union
• Left country for Argentina, 11.1.77. His return to the country has not been registered.
• Veliz Ramirez, Hector, Municipal Workers' delegate, CUT
• Left country for Argentina, 13.5.76. His return to the country has not been registered.
• Zamovano Donoso, Mario, former leader of Leather and Shoe Workers' Union
• Left country for Argentina, 13.5.76. His return to the country has not been registered.
  3. 3 Have not been arrested. No information as to their present place of residence
• Atencio Cortes Vicente, former President of Union of Municipal Workers of Arica
• (In January 1977, the Government had indicated that he had purged a sentence of imprisonment for acts against the security of the State and that he was freed on 11.9.76).
• Cacéres Gonzales, Jorge, trade union leader
• Castillo Tapia, Gabriel, former trade union leader, Saltpeter Workers' Union
• Cerda Cuevas Gesar, former peasant leader
• Diaz Lopez, Victor, former leader of the CUT
• Diaz Silva, Lenin, former leader in "La Exotica" Mines
• Leon Mañoz, Gabriel, trade union leader of news vendors of Talcahuano
• Lopez Suarez, Nicolas, former leader of the CUT.