Report in which the committee requests to be kept informed of development - Report No 171, November 1977

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

Summary of the situation

• Summary of the situation
  5. 5 Having received a series of complaints concerning violations of freedom of association in Chile (Case No. 765), the Committee submitted two reports on this matter to the Governing Body. At its 193rd Session (May-June 1974), the Governing Body decided, with the agreement of the Chilean Government, to submit the matter to the Fact-Finding and Conciliation Commission on Freedom of Association, whose final report, was accepted by the Government. At its 60th Session (June 1975), the International Labour Conference adopted a resolution concerning human and trade union rights in Chile. In pursuance of this resolution and following requests from the Governing Body, the Government submitted three reports under article 19 of the ILO Constitution on the measures taken to comply with the Commission's recommendations. The first of these reports was examined by the Governing Body during its 198th Session (November 1975). The second and the third were the subject of reports by the Committee which were respectively approved by the Governing Body at its 200th and 201st Sessions (May-June and November 1976).
  6. 6 In paragraph 44 of its 161st Report, the Committee recommended the Governing Body, inter alia, to draw the Government's attention to certain principles and considerations regarding points which had given rise to recommendations from the Fact-Finding and Conciliation Commission on Freedom of Association (particularly the adoption of new trade union legislation, collective bargaining, the situation of certain trade union organisations, human rights and the detention of trade unionists). The Committee also recommended that the Governing Body request the Government to continue submitting information on the evolution of the situation with regard to the recommendations made by the Fact-Finding and Conciliation Commission, and to submit a report on this subject by 1 April 1977. The Government submitted this report in a communication dated 12 April 1977.
  7. 7 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).
  8. 8 In its report, the Government provides information more particularly on legislative reforms under consideration with regard to trade union matters and activities in the country, collective bargaining, problems relating to certain trade union organisations and matters relating to civil liberties as relevant to the exercise of trade union rights.

A. A. The complainants' allegations

• Question of the adoption of new trade union legislation and trade union activities in the country
  9. 9 The Fact-Finding and Conciliation commission had recommended that the Government adopt without delay new trade union legislation which, in order to be in conformity with the principles of freedom of association enshrined in the Constitution of the International Labour Organisation and to permit the ratification, as the Government stated was envisaged, of the freedom of association Conventions, which contain very clear provisions on this question, should recognise, in particular, certain principles concerning the right of workers, without distinction whatsoever, to establish organisations of their own choosing without previous authorisation, the right of organisations to hold meetings, to elect their representatives in full freedom, and to organise their administration without interference by the authorities, and the right of organisations to enjoy full guarantees as to facilities for their defence if the question of their suspension or dissolution should come before the courts.
  10. 10 In its previous report, the Government referred to Constitutional Acts promulgated on 11 September 1976, and especially to the provisions relating to the right to work. Regarding the draft Labour Code, the Government stated that it had systematically and carefully analysed the observations made by the workers' and employers' organisations. Moreover, the President of the Republic was consulting the Council of State regarding matters in the draft text concerning trade union organisations.
  11. 11 At its session in November 1976, the Committee recommended the Governing Body to note the adoption of new Constitutional provisions concerning trade union rights, but to renew its appeal to the Government to promulgate as soon as possible new trade union legislation conforming fully with the recommendations made by the Fact-Finding and Conciliation Commission.
  12. 12 In its report of 12 April 1977, the Government states that Book TI of the draft Labour Code, dealing with trade union organisations, is being examined by the Council of State. This body has reviewed the text in general terms and referred it for detailed study to a subcommittee. Rook IV of the draft Code, dealing with labour courts, is likewise at present under study. A report containing a technical appraisal of these aspects of the Labour Code is due to be submitted to the President of the Republic during the second quarter of the year. The Government also mentions the adoption of legislation concerning training and employment, dismissal, the protection of employees of enterprises in financial difficulties, social security and family allowances.
  13. 13 As concerns trade union activities, the Government deals first of all with the question of union elections. The Government states that under the provisions concerning the state of siege elections of all kinds have been provisionally suspended throughout the country. This measure is designed to avoid pointless conflict and dissention in the country's present emergency situation. The ban on trade union elections is therefore a consequence of the general ban on elections, and the Government denies that any infringement of the principles of freedom of association is involved. It adds that the country has been obliged to adopt these measures of a political nature, applicable to all inhabitants without exception. The Government states however that, in a spirit of conciliation, a special procedure has been introduced as provided for in section 9 of Legislative Decree No. 198. Under this procedure, where it is not possible to apply the system of appointing trade union leaders on the basis of seniority, the ministry of Labour may appoint these leaders on the recommendation of the workers in the union concerned. This means, continues the Government, that in practice the workers really hold elections when they choose the leaders to be proposed to the Ministry. During 1976, 39 trade union organisations (industrial unions, occupational unions, associations of employers, federations and Confederations), covering a wide range of activities, availed themselves of this right.
  14. 14 In addition, the Government supplies in its report statistics as to the number of trade union organisations in the country and their membership. At 31 December 1975 there existed in Chile 7,253 organisations of employers and workers with a total membership of 1,022,789, or 35.5 per cent of the economically active population. The figure reached 1,100,000 by the end of 1976. The Government adds that in ten years the number of trade union organisations and the membership figure have risen respectively by 250 and 300 per cent. In 1976, 117 organisations were founded, including three national federations. The Government also supplies tables giving the figures for the dues paid to trade union organisations, which it points to as evidence of their financial independence.
  15. 15 The Committee notes that the part of the draft Labour Code dealing with trade union organisations is still under examination by the Council of State. The Committee must point out that this information was already supplied by the Government in the report it submitted for the Committee's November 1976 Session. The Committee further notes that, according to the Government's own statement, the observations of the workers' and employers' organisations were transmitted to the Government in the course of 1975.2 In these circumstances, the Committee can only deplore the considerable delay in promulgating the Hook of the Labour Code dealing with trade union organisations, which the Government had indicated might be adopted in May 1975.3
  16. 16 The Committee considers that after nearly four years of severe restrictions upon the exercise of trade union rights in fundamental fields of trade union activity, it has become urgent for the Government to adopt legislation ensuring full respect for the principles of freedom of association and, in particular, for the recommendations made by the Fact-Finding and Conciliation Commission. The Committee continues to hope that the draft legislation in question is now in its final stages and that it will be promulgated in the very near future so as to guarantee the normal functioning of trade union activities which are still restricted, particularly under Legislative Decree No. 198.
  17. 17 As concerns more particularly trade union elections, the Committee notes the Government's statement that the ban on them is a consequence of the general ban on elections throughout the country. It also notes that the Ministry of Labour may appoint trade union leaders on the recommendation of the workers concerned. The Committee observes, however, that this procedure is followed only in cases where the rule whereby vacant posts are filled by the workers with the longest service cannot be applied. In any event, the Committee is of the opinion that the appointment of trade union officials by the Ministry of Labour, even on the recommendation of the workers concerned, constitutes a serious infringement of the right of organisations to elect their representatives in full freedom.
• Collective bargaining
  18. 18 The Fact-Finding and Conciliation Commission had expressed the hope that collective bargaining, which was prohibited, would be resumed as soon as possible and had recommended that in the meantime, as a temporary measure, the Government generalise the setting up of tripartite advisory Committees, composed of representatives freely elected by their organisations, with a view to making improvements in the remuneration resulting from the general automatic adjustments.
  19. 19 In its earlier reports the Government referred to the need for drastic stabilisation measures as justifying the suspension of collective bargaining until 31 March 1977. The Government nevertheless pointed out that readjustments of remuneration had been granted to compensate for increases in the cost of living and that the powers of the tripartite advisory Committees were to be extended; they would cease to be advisory and become deliberative, whereupon decisions would be adopted unanimously, save in exceptional circumstances where the Government was obliged to step in to protect consumers. While noting the information supplied by the Government, the Committee recommended the Governing Body at its November 1976 Session to point out once again that an important objective of the Government should be to restore the practice of collective bargaining as soon as possible.
  20. 20 In its report of 12 April 1977, the Government states that collective bargaining is suspended until March 1978. However, according to the Government, this does not mean that voluntary negotiation between employers and workers within an undertaking is forbidden. Such negotiation frequently takes place, in addition to the activities carried on by the tripartite Committees. During 1976 the Government pursued a policy of readjusting wages at quarterly intervals to offset entirely the increase in the consumer price index. The Government further states that the trend of economic activity is favourable in that the rate of inflation for 1976 was 174.3 per cent. This made possible a gradual rise in the level of remuneration and the lowest income groups were granted a special readjustment in April 1976. The policy of automatic readjustments will continue to be pursued in 1977.
  21. 21 As regards the tripartite Committees, the Government states that up to now the autonomy of these Committees has been relative as their decisions had to be approved by the authorities. This system is about to change. Under the ministerial programmes drawn up by the National Planning Bureau and approved by the President of the Republic, it will be incumbent upon the Ministry of Labour, in the course of 1977, to increase the number of tripartite Committees, to rationalise and intensify their activities and to give their decisions deliberative status. A draft Legislative Decree is now in preparation with a view to setting up a permanent Committee composed of representatives of the various sectors of the economy and of the labour movement, which would have the task of assisting the tripartite Committees. A general classification of all the economic activities in the country is also in preparation, with a view to extending the tripartite Committees to the greatest possible number of branches of activity in the country.
  22. 22 Moreover, this machinery will be given absolute and total autonomy as well as being allowed great flexibility for the negotiation of pay rates and working conditions. It will thus be possible for employers' and workers' representatives, exercising the powers duly vested in them by those whom they represent, to conclude collective agreements which will be fully valid without the endorsement or approval of the authorities being necessary. The role played by the Government, through its representative, will be secondary, and the latter will intervene only in the event of disagreement between the parties, or in order to safeguard the general interest if the parties should agree on something which might be prejudicial to the rights of other workers, the interests of consumers or the national economy. In any event, such intervention would not go beyond the compilation of data and the supply of reports at the request of the parties. According to the Government, the Collective Agreements Recommendation, 1951 (No. 91), would thus be put into practice. A list of the different branches of activity where tripartite Committees are in operation is appended to the Government's report.
  23. 23 The Committee notes with interest that the Government is planning to make changes this year in the system of tripartite Committees so that it will no longer be compulsory for an agreement to be approved by the authorities in order to be valid. The Committee expresses the hope that these provisions will be adopted in the very near future and that they will constitute a step towards the full re-establishment of free collective bargaining.
• Problems relating to certain trade union organisations
  24. 24 The Fact-Finding and Conciliation Commission had recommended that the Government normalise the financial situation of the Ranquil Confederation and the United Confederation of Workers and Peasants and make it possible for these Confederations and the organisations affiliated to them to resume their trade union activities.
  25. 25 At its November 1976 Session, the Committee recommended the Governing Body to deplore the lack of information from the Government on the conditions under which the Ranquil Confederation and the United Confederation of Workers and Peasants were carrying out their trade union activities and to request the Government once again to supply information on the situation with regard to these two organisations.
  26. 26 In its report of 12 April 1977, the Government refers to the question of the financing of agricultural workers' organisations, which has been raised in a complaint before the Committee at its present session, within the context of Case No. 823. As concerns the Ranquil Confederation and the United Confederation of Workers and Peasants, the Government remarks that the six other national agricultural Confederations and the 85 provincial federations in this sector, as well as the entire labour movement in general, are carrying on their activities normally and collecting their members' dues without aid from the State or from the employers. The Government considers it unfair to intervene in favour of specific sectors of the Chilean trade union movement, the more so since the organisations in question have probably suffered a drop in their membership due to the latter's preference for organisations free from attachments with political parties.
  27. 27 The Committee notes these statements by the Government. It recalls nevertheless that the Fact-Finding and Conciliation Commission had noted that the Ranquil Confederation and the United Confederation of Workers and Peasants were faced with specific problems. The premises of both these organisations had been closed down and the authorities had confiscated their literature, furniture, office equipment and vehicles. Various organisations affiliated to them had been dissolved. The Commission had further noted that since the change of regime the two Confederations and their affiliated federations had received none of the money due to them under the former legislation on the financing of agricultural organisations from either the Department of Labour or the Trade Union Education and Extension Fund. The Government subsequently stated, without referring specifically to the organisations mentioned above, that it had corrected the situation that had arisen in 1974, when the funds in question were not properly distributed. The Government has still not explained what the position is with respect to these two organisations as requested by the Committee. The Committee can only continue to deplore the lack of information from the Government on the situation of these organisations.
  28. 28 At its November 1976 Session the Committee recommended the Governing Body to point out to the Government that it would be useful if it could take all possible measures to solve the difficulties encountered by the Industrial Federation of Building, wood and Building Materials Workers (FIEMC) and the National Federation of Textile and Clothing Workers (FENATEX) in obtaining legal personality.
  29. 29 The Committee notes with regret that the Government's report makes no mention of the situation of these two organisations. It wishes to renew its appeal for measures to be taken to facilitate the granting of legal personality to these two organisations, in accordance with the recommendations made by the Fact-Finding and Conciliation Commission and reiterated several times by the Committee and by the Governing Body.
  30. 30 The Fact-Finding and Conciliation commission had mentioned in its report that the National Association of Education Service Employees (ANESE) was being run by a government-appointed supervisory Committee and was unable to engage in any really effective trade union activity. It had recommended that the Government bring this takeover to an end. At its May 1976 Session the Committee observed that no information had been made available on this organisation. Since then nothing further has been heard from the Government on this subject. The Committee would like the Government to supply information on the situation of this organisation.
• Civil liberties relevant to the exercise of trade union rights
  31. 31 The Fact-Finding and Conciliation Commission had pointed out that it would be highly desirable to give priority to certain objectives, namely the release or bringing to trial of trade unionists in custody under procedures which provided full safeguards of defence and impartial judgement; the guaranteeing of the right not to be arrested except in accordance with the ordinary criminal procedure; and the guaranteeing of protection against all forms of ill-treatment during detention, through the issuance of special instructions prescribing effective penalties. Such measures, and indeed any review of sentences already pronounced or the application of clemency, or even an amnesty, would in the opinion of the Commission certainly help to restore the climate of normality which is one of the main conditions for the effective exercise of trade union rights.
  32. 32 In earlier reports the Government mentioned the adoption of various decrees in January and February 1976, providing in particular for visits to places of detention without prior notice by the President of the Supreme Court and the Minister of Justice, medical examinations for detainees, investigations where there is evidence of ill-treatment, and the obligation to send a copy of the arrest warrant to detainees' relatives, indicating the place of custody. The Government also stated that these measures had been supplemented by the adoption of a legal appeal procedure for use in the event of non-compliance with the obligation to notify detainees' relatives of their arrest. The Government further declared that these decrees had been fully applied. It also referred to the adoption of Constitutional Act No. 3, for the protection of certain basic human rights.
  33. 33 At its November 1976 Session, the Committee recommended the Governing Body to note with interest the adoption by the Government of Constitutional provisions protecting certain basic human rights and to recall the great importance which it attaches to the effective application of the decrees of January and February 1976 concerning the protection of detainees. The Committee also expressed its concern at the allegations examined in connection with Case No. 823 to the effect that trade unionists arrested by the security forces could not be found in any of the places of detention in the country.
  34. 34 In its report of 12 April 1977, the Government announces that the state of siege "to the degree necessary for internal security" has been prolonged until 11 September 1977. The Government's explanation is that the sole purpose of this measure is to safeguard national security, maintain public order and preserve peace within the country. These objectives could not be achieved if the Government did not have emergency means of protecting and preserving the right of citizens to industrial peace, public tranquillity and, in short, protection of their own lives and safety. The Government states that eight members of the Revolutionary Left-Wing Movement, responsible for armed attacks among other crimes, have been captured. More recently, continues the Government, a plot by members of a political party to overthrow the Government has been uncovered.
  35. 35 As concerns the detainees, the Government states that, during the closing months of 1976, 302 persons were released and that consequently only one of the persons detained under the emergency powers is still in custody. The Government further states that nobody is now held in the places of detention under government control. The Government adds that any assertion to the contrary is a deliberate misrepresentation of the truth designed to undermine the prestige of the Chilean Government. When it examined Case No. 823 at its February 1976 Session the Committee had already noted that the majority of the persons concerning whom it had received information had been released.
  36. 36 At 31 December 1976, according to the Government, 376 persons were serving sentences of imprisonment pronounced by military courts. Proceedings were pending before these same courts in respect of 90 persons. The vast majority of them have been convicted of or are on trial for breaches of the Arms Control Act, the Code of Military Justice and the State Security Act. These persons are common-law offenders and cannot be qualified as political prisoners. Since they are common-law offenders, the penitentiary establishments where they are detained are under the control of the judicial authorities and the Ministry of Justice. The Government cannot and will not accept that a person prosecuted for unlawful possession of arms or explosives, or for wounding or killing members of the armed forces, should be deemed to be a political prisoner.
  37. 37 The Government further states that there have been remittals of sentences. Of 1,395 applications, only 127 were refused. In addition, 198 persons sentenced to forced residence have recovered the right to move freely around the country.
  38. 38 The Government considers that the allegations that persons have disappeared or been abducted are designed to give the impression that the Chilean Government is having persons arrested without any legal grounds and holding them in secret places. It refers to the example of 13 members of the Communist Party, several of whom have been proved by an inquiry to have left the country. According to the Government, this is proof that these disappearances are voluntary.
  39. 39 The Government goes on to quote a statement it issued on 10 March 1977. In this statement the Government recalls that from September 1973 to the end of 1975 the armed forces were obliged to do battle against extremists. In many cases it was impossible to identify them as they used several aliases. Moreover, the Government points out for the benefit of public opinion that in any country a percentage of disappearances is considered to be normal. The Government also declares that it respects the right of any person to ask the judicial authorities for any information he considers necessary.
  40. 40 The Committee notes the information supplied by the Government on this point, most of which had already been furnished in earlier reports. The Committee proposes to examine the allegations referring to specific instances of trade unionists or former trade unionists having been arrested or having disappeared, and the Government's replies thereon, when it considers Case No. 923.
  41. 41 In concluding its report the Government requests the Director-General to inform the Organisation that it will submit, if necessary, only two reports per year, for the May and November sessions of the Committee. The Government explains that the call for so many reports does not facilitate their preparation nor their evaluation and that it leads to delay in their despatch.
  42. 42 The Committee points out in this connection that, as concerns the effect given to the recommendations of the Fact-Finding and Conciliation Commission concerning the case of Chile, it has always been the practice of the Committee and the Governing Body to request the Chilean Government to supply reports only for the May and November sessions of the Committee and the Governing Body. As concerns Case No. 823, on the other hand, the Committee and the Governing Body have followed the procedure customarily applied in all cases where interim conclusions are reached, whereby governments are requested to supply information for the next session of the Committee.

The Committee's recommendations

1. 43. In these circumstances, the Committee recommends the Governing Body:
   • (a) to note that, in accordance with the decision adopted by the Governing Body at its 201st Session (November 1976), the Government of Chile has submitted a further report on the evolution of the situation with respect to the recommendations of the Fact-Finding and Conciliation Commission on Freedom of Association;
   • (b) to urge the Government to promulgate as soon as possible new trade union legislation, thereby giving effect to its stated intention to do so, and to repeal Legislative Decree No. 198 in order to ensure the normal functioning of trade union activities;
   • (c) to draw the Government's attention to the principles and considerations set forth in paragraph 17 above with respect to trade union elections;
   • (d) to note with interest the changes contemplated in the system of tripartite Committees, and to express the hope that they will constitute a step towards the full re-establishment of free collective bargaining;
   • (e) to remind the Government that the Committee still requires information concerning the Ranquil Confederation and the United Confederation of Workers and Peasants in order to be able to assess the present situation of these organisations, as well as information concerning the measures taken to grant legal personality to the FIEMC and the FENATEX.
   • (f) to request the Government to supply information on the situation of the ANESE;
   • (g) with regard to the questions relating to human rights, to note that the allegations referring to the arrest or disappearance of certain persons are being examined within the context of Case No. 823;
   • (h) to request the Government to continue to supply information on the evolution of the situation with respect to the recommendations of the Fact-Finding and Conciliation Commission and to submit a report on this subject by 1 October 1977.