Definitive Report - Report No 217, June 1982

Case No 1096 (Chile) - Complaint date: 29-OCT-81 - Closed

1. 286. In a joint communication dated 29 October 1981, the International Confederation of Free Trade Unions (ICFTU) and the International Transport Workers' Federation (ITWF) presented a complaint of infringement of trade union rights in Chile. The complainant organisations sent additional information on 1 and 3 December 1981. The Government supplied its observations in communications dated 10 February and 21 April 1982.
2. 287. Chile has not ratified 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. Allegations of the complainants

1. 288. In their complaints, the ICFTU and the ITWF denounce the adoption by the Government of Chile of Act No. 18032 respecting dockworkers.
2. 289. In its telegram of 1 December 1981, the ICFTU protests against the assignment to residence of the Talcahuano maritime workers' trade union leaders, Juliano Troncoso Rodriguez, Reginaldo Troncoso Rodriguez, Juan Cifuentes Gutierrez and Domingo Bravo, who had protested against the adoption of the new Act.
3. 290. In their communication of 3 December 1981, the complainants explain that on 25 September 1981 Act No. 18032 respecting dockworkers was published in the official Gazette. This law introduces amendments to Legislative Decree No. 2200 of 1 May 1978 concerning contracts of employment and the protection of workers and to Legislative Decree No. 2756 of 29 June 1979 concerning the organisation of trade unions. In addition, the new Act adds a new title (Title VI) to Book I of the Labour Code.
4. 291. The complainants recall that the amendments previously made to the labour legislation were not applicable to dockworkers because of the specific characteristics and long tradition of the maritime sector. In their view, Act No. 18032 constitutes a serious step backwards as regards the working conditions of dockworkers (formerly called coastal maritime workers). Under the Act, the "register system" is done away with and a "dockworkers' permit" is established in its place, which means that with the promulgation of the law all of the previously "registered" workers found themselves without a job.
5. 292. The Act also provides that labour-management relations are to be governed by individual contracts of employment, which presupposes that there will be no more collective bargaining. All of the benefits directly financed by the workers (educational aid, clinics, etc.) have, according to the complainants, been done away with. Lastly, the Act no longer retains the system of appointment by rotation or the employers' obligation to consult the trade union organisations when recruiting staff.

B. The Government's reply

1. 293. As regards the persons assigned to residence, the Government states that the persons mentioned in the complaint were arrested on 28 October 1981 for engaging in activities contrary to public order on 29 October, the government authorities placed them under house arrest in various towns of the country. These measures were lifted on 24 November 1981, and since then the persons concerned have enjoyed full freedom to move throughout the territory.
2. 294. In respect of the allegations relating to Act No. 18032, the Government states that the "register system" has not been removed. The Act merely lays down the obligation to renew registration by a "dockworkers' permit", which will be granted only to persons fulfilling certain conditions established by the law. In the Government's view, the only thing that has been done away with is the "monopolistic" aspect of the register system allowing discrimination. It is false, the Government adds, to state that the dockworkers have been put out of work. On the contrary, it is the workers themselves who refused to return to work when so requested. In recruiting staff, the Government states, enterprises will give preference to workers previously registered because of their greater experience.
3. 295. As regards the allegation that the employers' obligation to consult the trade unions when recruiting staff has been terminated, the Government points out that under the national Constitution no employment or job may be made subject to membership of or withdrawal from an organisation. In this respect, Act No. 18032 puts an end to the monopoly and preferential and discriminatory access to employment enjoyed by 3,500 workers in the country, which was highly prejudicial to the 20,000 workers illegally employed at the ports.
4. 296. As for collective bargaining, the Government states that workers may negotiate with their employers on three bases: individual bargaining, agreements concluded through bargaining between the union of casual workers and the employers, and collective bargaining within a loading and unloading enterprise. In the Government's view, collective bargaining is a procedure for fixing the form of remuneration for services performed by the workers. Consequently, such bargaining must necessarily be carried out between the workers and those requesting their services, on a bilateral basis. The worker is entitled to demand remuneration commensurate with the service he performs, but this demand should not be excessive for the employer or result in transferring the cost to third parties, as negotiation by branch of activity would do. Negotiation by branch of activity incurs a cost for the consumers, the unemployed and the State and leads to a monopolistic situation commonly known as a cartel.
5. 297. As regards the allegation that the benefits provided for in the collective agreements concluded between the trade union organisations and the Chilean Maritime Chamber have been done away with, the Government observes that, if freedom of employment and freedom to join trade union organisations are now to exist, the collective agreements in their previous form must be replaced by individual or collective contracts of employment concluded in accordance with the legislation in force. These contracts in future will be concluded directly with the employers.

C. The Committee's conclusions

1. 298. The Committee notes first of all that the trade union leaders who had protested against the adoption of Act No. 18032 and who had been placed under house arrest have now been released and are free to move about the country. In this respect, the Committee wishes to stress that assignment to residence, which deprives trade unionists of the opportunity to carry on trade union activities, is a measure incompatible with the normal enjoyment of the right of association.
2. 299. As for the Act itself, the Committee observes that some of the allegations made by the complainants do not relate directly to trade union rights but more generally to the working conditions of dockworkers. These allegations therefore do not come within the Committee's competence.
3. 300. The Committee must, however, observe that the new legislation respecting dockworkers places serious limitations on collective bargaining, as does the general legislation on the subject, which the Committee examined at the time of its promulgation. The Committee must recall in particular that legislation should not constitute an obstacle to collective bargaining at industry level. It considers that the best procedure for safeguarding the independence of the parties would be to allow them to decide by mutual agreement the level at which bargaining should take place.
4. 301. Regarding the abolition of the employers' obligation to consult the trade unions when recruiting staff, the Committee must recall that it has always considered that questions relating to the existence or not of systems of trade union security in a given country should be settled at the national level. Accordingly, the Committee considers that this allegation does not call for further examination.

The Committee's recommendations

1. 302. In these circumstances, the Committee recommends the Governing Body to approve this report, in particular the following conclusions:
   • (a) The Committee notes that the new legislation respecting dockworkers places serious limitations on collective bargaining. It considers that legislation should not constitute an obstacle to collective bargaining at the industry level.
   • (b) The Committee, believing that the existence or not of systems of trade union security should be settled at the national level, considers that this aspect of the case does not call for further examination.