Interim Report - Report No 344, March 2007

Case No 2462 (Chile) - Complaint date: 10-JAN-06 - Closed

Allegations: the complainant organization alleges that, with the intention of wrecking the trade union, Correos de Chile has dismissed its union members, failed to comply with provisions of the collective agreement, discriminated against its members over a productivity incentive, offered new workers special assignments if they give up the benefits to which they are entitled under the collective contract and engaged in other anti-union practices, such as pressuring workers to leave the trade union; it also alleges that the Labour Directorate has not included Correos de Chile in the list of enterprises that have been found guilty of anti-union and anti-labour practices by the judicial authority

588. The complaint is contained in a communication from the National Trade Union of Professionals, Postal Technicians, Supervisors and other Employees of Correos de Chile (SNP) dated 10 January 2006. The organization sent further information and new allegations in communications dated 17 February and 18 May 2006.

1. 589. The Government sent its observations in a communication dated 6 July 2006.
2. 590. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 591. In a communication dated 10 January 2006, the SNP alleges a series of unfair and anti-union practices by the Chilean postal service, Correos de Chile, which is part of the Chilean state administration, and which it accuses of having embarked upon a secret campaign to eliminate the trade union by persuading all its members to resign from the union, by dismissing workers arbitrarily and by offering low-level line managers affiliated to the union promotion to senior management posts or to positions of trust. The union, which had 500 members when it was initially established on 4 November 1997, now has only 230, as a result of the enterprise’s systematic harassment and discrimination.
2. 592. The complainant organization adds that the enterprise refuses to pay the benefits provided for under the collective contract to its new members who are therefore obliged to lodge complaints through the union. One employee, Italo Ferraro Moya, for example, was dismissed in August 2005 for initiating legal proceedings against the enterprise for non-payment of an “allowance” stipulated in the collective labour contract. On other occasions, when the enterprise was ordered by the labour tribunals to pay allowances scheduled under the collective contract, it dismissed Patricia Macarena Cortes Monroy in March 2005 and Jaime Amor Illanes, both of whom were union members.
3. 593. According to the allegations, the management of Correos de Chile completely disregards the rulings handed down against it by the labour tribunals, as well as all the fines imposed on it by the various departments of the labour inspectorate. Consequently, a lot of union members are so afraid of losing their source of income because of their membership that they have resigned under pressure from the intermediate and senior line managers.
4. 594. The Minister of Labour promised to try to find a solution to the various problems that have arisen, which he described as very serious, and in October 2005 said that he would hold another meeting with the union to inform it of the outcome, but so far he has not done so.
5. 595. The complainant organization states that, in a court case brought against it in 2003 for unfair and anti-union practices, the enterprise was fined 150 tax units; the court also ordered the Labour Directorate to include this state enterprise in the list of enterprises that constantly infringe the labour laws, which is published in a national newspaper. The enterprise was supposed to appear in the July 2005 list, but for some reason it never did. Consequently, the Eighth Labour Court of Santiago was obliged to notify the National Labour Director, and the chiefs of its Labour Relations and Legal Department to comply with the Court’s ruling the next time the list was published. This condemnation for anti-union practices shows how the union has been sidelined from the work meeting held by the enterprise, by the general manager’s refusal to meet the union’s Executive Board (for four years) and the human resources manager’s deliberate policy not to meet the union so long as it did not change its attitude and appoint a new spokesperson (the President of the union was banned from the collective bargaining process in 2003).
6. 596. The complainant organization alleges that in May, June and August 2005, along with other unions operating in the enterprise, it was invited by the manager of the Mail and Parcels Division to a number of work meetings to set up a productivity incentive system for employees working in the various parcel units and routing centres throughout the country, based on the number of parcels, the number of kilograms received and the number dispatched. Once the system had been worked out, it was agreed to apply it to all workers in this area regardless of the union they belonged to, and to pay the incentives retroactively from May 2005 together with the September 2005 salaries. This is what happened for the vast majority of the workers involved, but not for the 17 employees working in this area who were members of the complainant organization. When the manager was asked to explain the discrimination, he apologized, saying that he had been sure that the incentive was intended for all the workers without any discrimination, but he had received instructions from the woman responsible for human resources, with the general manager’s backing, not to go along with what had been agreed and not to pay the incentive to members of the SNP; specifically, he said that the manager of human resources and the general manager had told him that it was not the right time and that the circumstances were not appropriate, because the union had issued a press release denouncing that and other unfair practices. As a result, a second complaint alleging unfair and anti-union practices was lodged with the Ninth Labour Court of Santiago on 7 October 2005. The complaint is still being investigated.
7. 597. The complainant organization states that it lodged a third complaint concerning unfair and anti-union practices on 9 November 2005, which is currently being examined by the Eighth Labour Court of Santiago, because Correos de Chile, in order to avoid having to pay workers who join the SNP, has devised the ruse of offering gilts to the workers it recruits in exchange for their giving up their benefits under the collective agreement, provided that they sign a declaration to the effect that the salary for which they have been recruited includes the allowance they are entitled to. Even more serious in this escalade of dishonest incentives, the enterprise is offering a meals allowance of 43,000 pesos, far more than it pays members of the five unions operating in Correos de Chile, who only receive 17,000 pesos. This is the policy that the management is following to prevent freedom of association.
8. 598. In its communication dated 17 February 2006, the complainant organization recalls that it managed to have a meeting with the Minister of Labour, who said he would do what he could to persuade the management of Correos de Chile to sit down with the union’s Executive Board to try and resolve their differences and would meet the SNP again to inform it of the outcome, but he never did. The authorities responsible for the state enterprise Correos de Chile have never answered the notes that the SNP has sent them; instead, they have obliged the trade union to lodge complaints with the labour tribunals, since they are not prepared to talk directly with the union’s Executive Board (they will only talk if the trade union accepts the collective contract that they tried to impose during the three series of collective bargaining). It is therefore impossible to find any common ground. The situation has done enormous harm to the union which, at the beginning of 2005, had 320 members and now has 240, during which time 50 of its members have been dismissed following a major scare campaign in which they were told that they would be dismissed one by one if they did not leave the union.
9. 599. The complainant organization attached with its communication copies of two additional complaints it has lodged. On one of these, accusing the enterprise of failing to pay in full a bonus provided for under paragraph 39 of the collective contract in force, the Court of First Instance ruled in its favour. The other complaint was lodged by officials of four of the five trade unions operating in Correos de Chile for non-payment of its social security contributions in respect of all the bonuses payable under the collective contracts between 1994 and 2001; the enterprise faces a possible debt of around 4,500 million pesos.
10. 600. In its communication dated 18 May 2006, the complainant organization alleges that, at the end of March, without any coherent or valid grounds, the enterprise dismissed four union members, all of them professionals working in the Financial Control Unit, and that on 5 May 2006 it dismissed a woman in the same unit who was a member of the union. The enterprise has not provided any technical or professional justification for its action, merely saying that the unit is being restructured. Correos de Chile claims it is covered by article 161 of the Labour Code, which refers the exigencies of the enterprise; but the fact is that an employer who invokes that article is not allowed to recruit new staff for the same functions, whereas the enterprise dismissed these employees and promptly recruited new workers for the same jobs. The complainant organization stresses that only members of the SNP have been dismissed from this unit; the rest of the unit’s staff, who are members of another trade union, have been told either by the enterprise or by the President of the union that they have nothing to fear and will be relocated to other parts of the enterprise. Correos de Chile has not responded to the SNP’s request for a meeting to discuss these matters.
11. 601. The Labour Directorate recently published in a national newspaper a list of enterprises which do not comply with the labour laws or respect trade union rights and which have been condemned by the labour courts, but Correos de Chile has still not been included in the list even though the Eighth Labour Court of Santiago found it guilty of anti-union practices.
12. B. The Government’s reply
13. 602. In its communication dated 6 July 2006, the Government states that the national legislation contains a series of legal and constitutional provisions recognizing the right to join a trade union, as well as detailed regulations governing the process of collective bargaining at the various levels (enterprise level or above) with a view to introducing better conditions of work and remuneration. Without entering into details, these provisions embody the criteria laid down in Conventions Nos. 87 and 98 of the International Labour Organization. At the top of the national legislative pyramid, the Chilean Constitution (article 19, paragraph 19) guarantees for all citizens the right to establish and join trade unions in the circumstances and manner prescribed by the law. The article goes on to state that “affiliation shall always be voluntary”, thereby clearly establishing the autonomy of the workers, whose membership or non-membership of such organizations cannot be subject to any kind of condition. The constitutional provision is reflected in article 212 of the Labour Code, which recognizes the right of all workers in the private sector and in state enterprises, irrespective of their juridical status, to establish trade union organizations freely and without prior authorization. In other words, the labour provisions contained in the Labour Code, and specifically those indicated in Book III (“Of trade union organizations and staff delegates”, articles 212 et seq.), refer explicitly to the basic standards of freedom of association, broadly following the criteria set out in ILO Convention No. 87.
14. 603. As to the right to negotiate conditions of work and remuneration collectively, this too is regulated in detail by national legislation, especially articles 303 et seq. of the Labour Code. The provisions governing collective bargaining have also been the subject of successive amendments that Chilean Governments have introduced since the beginning of 1990. Act No. 19759 of 2001 did away with all agreements imposed by the employer once and for all, with the result that collective agreements in Chile can now only be concluded by a trade union or with a group of workers with a minimal form of organization, and always within a more or less regulated procedure that guarantees minimum negotiating conditions.
15. 604. The Government adds that the rights embodied in ILO Conventions Nos. 87 and 98, and recognized in Chile’s national legislation, include an effective enforcement mechanism, in the form of a system of labour inspection and labour management, which incorporates additional protective measures for ensuring compliance (if necessary, compulsory compliance) by means of administrative and judicial procedures. Article 476 of the Labour Code provides for labour inspection to be carried out by the Labour Directorate. Inspection is in fact the very essence of this decentralized public service, which has legal personality and its own assets and is controlled by the President of the Republic through the Ministry of Labour and Social Security (Legislative Decree No. 2 of 1967, Labour Directorate Act). One of the fundamental tasks of the Labour Directorate with respect to trade unions is to ensure that their organizations conform to the legislation in force and to the principles of freedom of association laid down in ILO Conventions Nos. 87 and 98. Moreover, the Directorate acts as certifying officer in collective bargaining. During the actual negotiations it maintains a neutral stance, but it still has the power to prevent unfair practices even though the law courts always have the last word.
16. 605. The foregoing is completely in line with the provisions of article 292 of the Labour Code, reaffirmed by the administrative case law of the Labour Directorate itself, which is empowered, on its own initiative or at the request of an interested party, to rule on the interpretation and scope of labour laws (Legislative Decree No. 2 of 1967, Labour Directorate Act). The National Labour Directorate has stated in this respect that it is for the law courts to determine whether a practice is anti-union in nature, notwithstanding the right of intervention of the competent labour inspectorate in accordance with the provisions of article 292 of the Labour Code. Labour inspectorates operating under the National Labour Directorate have a duty to report any incidents they consider to constitute anti-union or unfair practices, and there is a legal presumption that the accompanying investigation report is a true reflection of the facts (article 292, paragraph 4, of the Labour Code). A labour inspectorate that reports an anti-union or unfair practice may be called upon to appear in court in any legal proceedings that ensue. Likewise, workers may lodge a complaint directly with an ordinary court of law regarding any incident which they consider to constitute an anti-union practice or anti-union bargaining.
17. 606. The matters dealt with by the labour courts under article 420(b) of the Labour Code include “questions arising from the application of provisions relating to trade union organization and collective bargaining, which by law are examined by courts responsible for labour issues”.
18. 607. It is clear from the foregoing that Chile has a whole series of laws that recognize, promote and protect the rights set out in Conventions Nos. 87 and 98, especially as regards anti-trade union and unfair practices in the course of collective bargaining. Moreover, Act No. 19759 of 2001 listed what are considered unfair and anti-union practices in great detail, increased the amount of fines and granted increased powers to the National Labour Directorate, which it authorized to be a party to court proceedings on such matters. As will be seen, Chilean labour law provides for special courts, with exclusive competence in labour matters which, inter alia, are empowered to deal with complaints of anti-union practices lodged by the workers themselves or by the Labour Directorate, as well as any questions arising from the application of provisions on trade union organization and collective bargaining.
19. 608. As to the specific aspects of the complaint, the organization alleges that the enterprise has engaged in anti-union practices in a bid to force the trade union to remove its President and legal adviser as a condition for concluding an agreement with the workers. It also states that it had negotiated a system of variable remuneration with the enterprise, which the latter subsequently refused to implement on the grounds that it did not trust the union since it had publicly denounced Correos de Chile. The complainant adds that it was this type of action that led it to lodge a complaint for anti-union practices directly with the Eighth Labour Court of Santiago, which culminated in a ruling against the enterprise.
20. 609. The Government recalls that, in its Digest of decisions and principles, the Committee on Freedom of Association has stated that “legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98”, which stipulates that “workers shall enjoy protection against acts of anti-union discrimination” that are calculated to diminish their freedom of association in relation to their employment. As the Committee will understand, the trade union lodged its complaint regarding the perpetration of anti-union practices by Correos de Chile directly with the Eighth Labour Court of Santiago. In Case No. 4224-2003, the workers alleged that the enterprise had sidelined them from work meetings that it held with other trade unions, that the management refused to meet its officials without giving any reasons and that the enterprise’s authorities refused to have any dealing with the President of the union.
21. 610. The workers’ allegations were found to be valid by the court, which therefore upheld their complaint and ordered the enterprise to include the complainant union in the work committees dealing with general matters and to hold meetings with the union’s Executive Board in accordance with normal consultation procedures; the court also fined the enterprise 50 monthly tax units. This ruling is now final, inasmuch as the Supreme Court, on 30 November 2005, dismissed Appeal No. 2243-2005 lodged by the enterprise to have it overturned. The Santiago Court of Appeal’s ruling of 14 April 2005, which had already upheld the decision of the Court of First Instance, was therefore confirmed.
22. 611. In cases such as this, the Labour Directorate is required by article 294bis of the Labour Code to keep a record of court rulings on anti-union and unfair practices and to publish a six-monthly list of enterprises and trade union organizations that have been found guilty. A court that rules on a matter of anti-union or unfair practices must, accordingly, send a copy of the relevant ruling to the Labour Directorate.
23. 612. As indicated by the complainant organization, Correos de Chile should, following the ruling handed down by the Eighth Labour Court of Santiago, appear in the list of offending enterprises published in accordance with article 294 of the Labour Code already referred to. This list is due to be published in the second half of 2006, as was explained to the officials of the complainant trade union by the Labour Directorate authorities at the meeting referred to by the workers themselves.
24. 613. Similarly, the Committee on Freedom of Association has stated that: “as long as protection against anti-union discrimination is in fact ensured, the methods adopted to safeguard workers against such practices may vary from one State to another, but if there is discrimination the government concerned should take all necessary steps to eliminate it, irrespective of the methods normally used.”
25. 614. The Committee goes on to state that: “the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed.” The Committee further states that: “complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned.”
26. 615. As mentioned earlier, Chile has a whole series of provisions in its Labour Code, and specifically those indicated in Book III (“Of trade union organizations and staff delegates”, articles 212 et seq.), that refer explicitly to the basic standards of freedom of association, along the broad lines of the criteria established in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), of the International Labour Organization. In addition, the country has special procedures for labour disputes between the parties to an employment relationship, as well as specialized tribunals under the judiciary which are independent of the executive and which accordingly have exclusive competence in disputes brought before them. Furthermore, Chile has modified the structure of its labour procedure so as to ensure that speed and focus are of the essence. The new procedure is modern, speedy, expeditious, unencumbered by ritual, based on oral presentations, free of charge to the workers and requires the direct participation of the judge in all the hearings.
27. 616. But this series of labour standards is not all; Chile’s labour legislation also provides for machinery to guarantee the freedom of association of all the country’s workers, including those employed by Correos de Chile, and to prevent unfair practices. These provisions do more than simply prohibit anti-union practices; they also establish clear and pre-established procedures that have in fact been extensively revised. Under these provisions, workers are entitled to apply for judicial protection of their rights, including the public notification of the offending enterprise through administrative channels.
28. 617. Moreover, the point should be made that, when the present complaint was brought to its attention, the National Labour Directorate invited the claimant trade union to submit documentation so that it could carry out an investigation and discuss the matter with the enterprise. As the Labour Directorate’s report No. 190 of 17 January 2006 shows, Luis Castillo Aravena, President of the union, and Rigoberto Espinoza Sazo, its Director, were invited on two occasions to meet the Directorate’s Labour Relations Unit. At these meetings, the union officials informed the Labour Relations Unit that they wished to speak directly with the highest authorities, i.e. the National Labour Director or the Minister of Labour. Without seeking to belittle the capability of the Unit, they opted not to take advantage of the possibility of mediation offered them by the Labour Directorate.
29. 618. The union officials thus chose to hold talks with higher authorities rather than with the Labour Relations Unit, even though they had already met the highest authority in labour matters, the Minister of Labour and Social Security, on 17 October 2005.
30. 619. In other words, the complainant organization has had access to all the administrative and judicial bodies provided for under Chilean legislation and to the highest authorities in labour matters, namely the National Labour Director and the Minister of Labour, whom its officials met personally.
31. 620. The Committee will appreciate from the foregoing, and from the submission of the claimant organization itself, that the ordinary courts of law have been fully informed of the alleged violation of the provisions of Conventions Nos. 87 and 98.
32. 621. The Government concludes by pointing out that the complainant organization followed due procedure by appealing to the labour inspectorate and also, on its own initiative, to the courts of justice, and that these took up the matters submitted to their jurisdiction and, after having passed judgement on the allegations in first or final instance, ruled on a number of issues in favour of the claimants.
33. 622. The Government stresses further that the complainant organization was invited to take advantage of the labour inspection system of the administrative authority but rejected the Labour Directorate’s offer of mediation for all the aspects of the complaint that had not been ruled upon in the courts, opting instead for the direct mediation of the Minister of Labour and National Labour Director.
34. 623. The Government, within the framework of the independence of the state authorities and respecting the obligation laid down in article 73 of the Constitution “not to exercise jurisdictional functions, express an opinion on matters that are still pending, review the grounds or content of court rulings or reopen lawsuits that have been settled”, undertakes to keep the ILO informed of developments in the labour court proceedings initiated by the complainant organization that are still pending.
35. 624. The Government attached a statement by Correos de Chile dated 9 November 2005, setting out its position on the complaint, which is summarized below.
36. The position of the enterprise
37. 625. Correos de Chile states that it is an autonomous state enterprise established by law, which is subject to the control of the Office of the Comptroller General and governed by the standards of the financial administration of the State; its relations with its employees are governed by the provisions of the Labour Code and complementary legislation, in accordance with the Ministry of Transport (Subsecretariat for Telecommunications) Act contained in Legislative Decree No. 10 of 1981.
38. 626. A 1993 amendment to that Act established the right of the workers of the enterprise to bargain collectively. The first round of collective bargaining was accordingly held in 1994, followed by 1996, 1998, 2000 and 2002. In 2002, the National Trade Union of Postal Operators and Postmen No. 1 concluded collective agreements for a period of four years, with the sole exception of the SNP whose members decided, in all the collective negotiations held since 2000, to take up the option provided for under article 369 of the Labour Code.
39. 627. There are currently five trade unions operating in the enterprise: the National Trade Union with 3,018 members, the Postal Operators’ Trade Union with 739, National Trade Union No. 1 with 359, the Postmen’s Trade Union with 374, and the complainant organization, the SNP, with 255. Union membership in the enterprise is of the order of 96 per cent, while the proportion of workers whose remuneration and benefits have been established under collective contracts and collective agreements is 97 per cent.
40. 628. It is clear from the foregoing that the senior management of the enterprise has strictly respected the provisions governing individual and collective labour rights in Chile and has at all times practised dialogue and negotiation in a climate of complete freedom of association and respect for workers’ rights.
41. 629. With regard to the collective contracts concluded with the complainant trade union, the enterprise states that, when the collective contract of 1998 came to an end in December 2000, the enterprise and the complainant organization signed a collective contract of employment whose terms the organization has subscribed to in successive negotiation since that date, taking up the option afforded by article 369 of the Labour Code.
42. 630. The said agreement was the outcome of difficult collective bargaining that ended up with the compulsory arbitration provided for by the law, since at the time there was still a ban on strikes (the ban was repealed in 2001). On that occasion, the arbitration ruling that was handed down in first instance was in favour of the draft collective contract submitted by the workers. The enterprise appealed against the ruling and an arbitration committee was accordingly set up in accordance with the law, which engaged in a process of mediation between the parties in a bid to reconcile the clauses of the said draft with the position of the enterprise. The outcome was the contract of 6 December 2000. This means that the said contract is binding as regards the ruling handed down in the first instance, and conventional with respect to the adaptations and amendments that were introduced in the second instance with the agreement of the parties concerned and the mediation of the arbitration committee.
43. 631. In the collective bargaining processes that followed the conclusion of the 6 December 2000 agreement, the law afforded the workers three options in the final stage of the negotiations:
44. (a) they could accept the employer’s final offer;
45. (b) they could vote in favour of a strike in the hope of having the workers’ position prevail; or
46. (c) they could maintain the provisions of the contract concluded prior to their submission of the new draft collective contract, by taking up the option afforded by article 369 of the Labour Code and under the terms stipulated therein.
47. In all negotiations that followed the 6 December 2000 contract, the Executive Board of the complainant trade union opted to exercise its right under the aforementioned legal provision, i.e. to maintain the provisions of that contract that were in force at the time of submission of the draft collective agreement at each round of negotiations.
48. 632. At no time did the enterprise intervene either directly or indirectly in the organization’s decision; rather, it invariably respected the decision taken freely and of their own accord by the workers regarding the manner of engaging in and concluding the successive negotiation processes.
49. 633. Nor did the enterprise at any time during the collective bargaining that took place after 2000 propose revoking the fundamental benefits under the 6 December 2000 contract; in the last round of negotiations on the subject, the enterprise recognized and maintained those benefits, specifically as regards professional category and seniority allowances for workers entitled to those benefits under the earlier contract, as can be seen from the records.
50. 634. Moreover, it is not true that the enterprise has ceased complying with the provisions of the collective contracts deriving from the complainant’s use of the aforementioned article 369 of the Labour Code; the benefits provided for in those contracts have been honoured in full.
51. 635. The dispute referred to by the complainants, which led to the legal proceedings in the labour courts, stems from their attempt to revive contractual clauses regarding benefits that were only ever paid once, or compensation for causes which predated the agreement and which the payment was supposed to have covered once and for all, and from their intention to demand the end-of-negotiation bonus in those instances where they resorted to article 369 of the Labour Code, whereas both the Labour Directorate and the enterprise consider that this bonus should be payable only in respect of the collective bargaining process in which it actually arose and cannot be raised again in subsequent negotiations that end in the application of that same provision of the Labour Code.
52. 636. In any case, no final judgement has been rendered in the proceedings referred to, as judicial appeals are still pending before the Appeals Court of Santiago and the Supreme Court.
53. 637. It is clear from the foregoing that the claimant cannot blame the enterprise for the consequences of decisions that its Executive Board took of its own volition, without any interference whatsoever, regarding the way it concluded the negotiations.
54. 638. As to the other allegations, the enterprise states that, given the urgency of adapting the enterprise to the exigencies and challenges posed by the international and Chilean postal system, a restructuring and modernization programme was introduced in 2002 that included a retirement plan affecting 1,600 employees working for Correos de Chile in various towns and other parts of the country.
55. 639. It should be pointed out that the said plan was fully endorsed by the trade union organizations representing the vast majority of the workers, and included the additional benefits referred to in the collective contracts concluded with National Trade Union No. 1 and the Postal Operators Trade Union on 11 October 2002, which together had a membership of over 4,000; moreover, the plan was applicable to all the workers of the enterprise, irrespective of their membership or non-membership of the various trade unions, and all were entitled to the same benefits and retirement terms.
56. 640. When the retirement plan was implemented, and in response to requests from the trade unions, the enterprise invited the organizations to sign a labour stability agreement; both National Trade Union No. 1 and the Postal Operators Trade Union did so, while the complainant trade union refused.
57. 641. Under this agreement, the enterprise undertook for the four years following the entry into force of the retirement plan not to introduce any new restructuring or modernization plans nor to take any action that might involve extensive resort to article 161 of the Labour Code; in other words, the enterprise would abstain from invoking the circumstances provided for in that article to justify any mass dismissals. The agreement did not and does not prevent the enterprise from resorting to that article in circumstances other than those mentioned, or from invoking the same circumstances to terminate the employment relationship in individual cases, should the situation so justify.
58. 642. Consequently, the individual cases referred to by the complainant organization are not and were not covered by the agreement referred to, quite apart from the fact that its own officials decided not to be a party to the agreement.
59. 643. The dismissals to which the complainant refers thus relate to specific instances that have nothing to do with the agreement in question, and the action taken is strictly in keeping with a right that the country’s labour legislation explicitly confers on employers as such.
60. 644. As to the complainant’s accusation of anti-union practices, it should be pointed out that the union’s Executive Board denounced ten alleged violations, of which the ruling handed down in the first instance by the Eighth Labour Court of Santiago upheld only three – a ruling that was nevertheless confirmed in the second instance. This second ruling was challenged in an appeal that the enterprise lodged both as to the form and as to the substance. In any case, the fact is that the complaints that led to the legal proceeding were not endorsed by two union officials who were members of the Executive Board at the time, and who expressly challenged the grounds on which the complaints were based.
61. 645. Furthermore, all rulings concerning anti-union practices must, by law, be published in the Labour Directorate Bulletin.
62. 646. As to the agreements entered into with professional workers who have recently taken up service with the enterprise, these are in conformity with the law.
63. 647. In criticizing these workers, the complainants are being altogether inconsistent since the employees concerned have merely exercised their rights under labour legislation, complying with all the formalities and requirements established therein, given that Chile’s legal system stipulates that the freedom of workers to join or not to join trade unions is a fundamental right.
64. 648. With regard to the system of variable remuneration in certain of the enterprise’s units that the complaint refers to, it should be made clear that this system of remuneration is provided for in Appendix 4 of the collective contract of employment of 11 October 2002 that it entered into with National Trade Union No. 1 and the Postal Operators Trade Union; the system was not applied to the complainant union, which was not party to the agreement. This was explained to the complainant union in a letter that the human resources manager of the enterprise sent to its Executive Board; the letter reiterated the enterprise’s willingness to discuss modifying its existing collective contract with the organization so as to include the new pay scheme. Instead, the union’s Executive Board chose to lodge a complaint with the labour courts on the grounds that it constituted an anti-union practice, thereby excluding any possibility of agreement extending the system of variable remuneration to its own members. This is how it came about that, without any kind of negotiation, the complaint was lodged with the Ninth Labour Court of Santiago on 17 October 2005, in total disregard of the enterprise’s willingness to consider applying the said benefit to the members of the complainant organization.
65. 649. With regard to the allegations concerning the promotion of workers to managerial functions, the enterprise states that the appointment of employees to management posts is a reflection of the growth of the enterprise; such promotions make it possible to put to advantage the experience they have gained in the past and their knowledge of the units in which they work and encourages labour mobility and advancement – for example, to posts of responsibility that can constitute a considerable promotion, involving as it does an increase in remuneration and the acquisition of management skills that can be used both in the enterprise and elsewhere. Attributing a negative connotation to such promotion as does the complainant trade union, on the grounds that it can cause a decline in its membership, is clearly self-interested and disregards the legitimate aspirations of workers for recognition and advancement in their careers.
66. 650. It is also clearly unjust and unrealistic to maintain that the enterprise could approve such promotions with the deliberate intention of reducing the claimant union’s membership, since the indiscriminate promotion of workers to management posts would entail failing to meet targets and fulfil requirements and would seriously undermine the normal functioning and development of the enterprise in such a sensitive area as management.
67. 651. Furthermore, the workers who accede to management posts do so freely and of their own accord and even express their desire to join the management ranks before any decision regarding their promotion is taken.
68. 652. It is obvious from the above that the enterprise has never acted in any way that might be construed as even an indirect attempt to undermine the membership of the complainant organization, or of any other trade union.
69. 653. In the same way, it has never acted in any way to encourage workers to join a particular trade union.
70. 654. It is likewise unacceptable to attribute a declining membership to the 2002 retirement plan or to individual dismissals that were decided upon by the enterprise in its capacity as employer.
71. 655. If the complainants feel that membership of their union has declined among workers in the enterprise then, instead of arbitrarily and without any justification blaming the attitude and decisions of the enterprise, they should consider freely and without prejudice the objective reasons that might explain their poor showing, instead of pretending that the enterprise is responsible for the consequences of decisions that their own Executive Board took freely and of their own accord and in full exercise of their trade union rights; for it is essential that people assume their responsibilities in the exercise of their rights and in the fulfilment of their obligations.
72. 656. In conclusion, the enterprise states that:
73. – the complainants’ views, particularly as regards alleged arbitrary dismissals and the enterprise’s supposed non-compliance with labour and social security legislation, are nothing more than subjective and mistaken observations concerning incidents which, in the unlikely event that they might be open to debate, can be challenged in juridical proceedings which anyone who believes he or she has been wronged can initiate under Chile’s legal system, on the understanding that the legislation in force also provides for the right of appeal through administrative channels and that the enterprise has acted in the belief that it has complied fully with the law;
74. – as can be appreciated from the foregoing considerations, the complainant alludes to incidents that are the subject of dispute between the parties concerned, and which have been submitted for a ruling to the appropriate specialized courts;
75. – thus, the legal proceedings concerned are still before the courts established by law, and the disputes cannot therefore be referred to any bodies other than those to which the complainants themselves took their case freely and of their own accord; and
76. – the enterprise considers that it has complied fully with the requirements of the law and has at all times respected the rights of the workers and of their trade union organizations.

C. The Committee’s conclusions

1. 657. The Committee observes that, according to the allegations of the complainant trade union: (1) Correos de Chile has refused to grant new members of the complainant union the benefits to which they are entitled under the collective contract, thereby obliging them to lodge complaints through the union and then dismissing those who do so (Italo Ferraro Moya) or who obtain a ruling in their favour (Patricia Macarena Cortes Monroy and Sr Jaime Amor Illanes) – these dismissals occurred in 2005; (2) many of the trade union’s members have resigned their membership under pressure from managers and intermediate chiefs; (3) the Labour Directorate has ignored the ruling of the judicial authority (condemning the enterprise for anti-union practices for not allowing the trade union to take part in work meetings, and for the general manager’s refusal to meet the union’s Executive Board for four years or to have any dealings with the President of the union during the 2003 negotiations) that the enterprise be included in the list of enterprises found guilty of constantly violating the labour laws; (4) the enterprise has discriminated against 17 members of the complainant trade union (but not against the members of other unions) by excluding them from the right to the productivity bonus for the parcels unit and routing centre that was agreed upon by the enterprise and all the trade unions in 2005; the complainant has initiated legal proceedings alleging anti-union practices; (5) the enterprise has offered new employees better financial conditions than those offered to members of the five current trade unions operating in the enterprise, in exchange for their giving up the benefits to which they would be entitled under the collective contract; (6) the enterprise has dismissed 50 members of the union since 2005, thereby reducing its membership from 320 to 240; (7) four of the five trade unions have lodged a complaint for non-payment of the workers’ social security contributions, in violation of the collective contract; (8) the enterprise dismissed five employees of the Financial Control Unit at the end of March 2006, claiming that it was restructuring, and then recruited other people to carry out the same functions (the members of other unions in the unit were not affected by the dismissals). In more general terms, the trade union stresses the lack of dialogue on the part of the enterprise and its intention to wreck the trade union by various means, including an offer of promotion to the management level or to positions of trust that it made to low-level line managers affiliated to the union.
2. 658. The Committee notes the Government’s statement to the effect that: (1) Chile’s legislation reflects the rights and guarantees provided for in ILO Conventions Nos. 87 and 98 and establishes effective machinery and procedures (Labour Directorate, special tribunals), as well as penalties for non-compliance; (2) in a court case brought in respect of anti-union practices, the judicial authority condemned Correos de Chile to pay a fine of 50 monthly tax units and ordered it to include the trade union in works’ committee meetings dealing with general issues affecting the enterprise and to hold meetings with the union’s Executive Board in accordance with normal consultation procedures; (3) the enterprise will be included in the list of enterprises and union organizations found guilty of unfair or anti-union practices that is to be published in the second half of 2006; the complainant union has been informed accordingly; (4) when the union officials lodged their complaint, the Labour Directorate suggested to them on two occasions that they carry out an investigation and discuss the matter with the enterprise (in so far as the matters had not been referred to the courts), but the union officials said they wished to take up the matter with the Labour Director or with the Minister of Labour (who had already met them on 17 October 2005) and preferred not to take advantage of the possibility of mediation available to them; (5) the incidents considered (in the complainant organization’s first communication) to be in violation of Conventions Nos. 87 and 98 have been brought before the courts with which the organization had lodged a complaint; and (6) the Government will keep the Committee informed of developments in the proceeding brought before the judicial authority by the complainant trade union.
3. 659. The Committee notes the position of Correos de Chile regarding the complaint, and specifically that: (1) the enterprise denies having engaged in anti-union practices and states that it has complied fully with all legal requirements and has respected the rights of the workers and of their trade unions; (2) the allegations of the complainant trade union are merely subjective and mistaken observations and allude to circumstances that the union itself has placed before the courts; (3) the complainant organization is one of five trade unions operating in the enterprise, where the level of unionization is around 96 per cent, and represents 255 members; in other words, it is the union with the smallest membership (the largest union has 3,018 members); (4) the enterprise has at all times maintained a climate of dialogue and negotiation and has concluded a number of collective agreements with trade unions; and (5) the decline in the complainant organization’s membership is the outcome of decisions that its Executive Board took freely and of its own accord and not of any steps taken by the enterprise. The Committee also notes the enterprise’s statement regarding the specific allegations of the complainant union, which will be examined each in turn.
4. 660. With regard to the allegation that the authorities have not, as required by law, included Correos de Chile in the list of enterprises and organizations found guilty of unfair or anti-union practices (despite having been found guilty of sidelining the complainant union, refusing to meet its Executive Board for four years and refusing to have any dealings with its President during the 2003 negotiations), the Committee notes the Government’s statement that the enterprise will be included in the list to be published in the second half of 2006 and that the complainant union has been informed accordingly. The Committee requests the Government to confirm that the enterprise has now been included in the list.
5. 661. The Committee has taken due note of the Government’s observations on the provisions and procedures that protect trade union, administrative and judicial rights; it observes that in most instances the trade union has made repeated use of these legal facilities, that in two cases it has obtained rulings condemning the enterprise and that other proceedings are still under way. The Committee observes that the Labour Relations Unit of the Labour Directorate offered the trade union its mediation services on the occasion of its first complaint. The Committee invites the complainant union to request that mediation in order to improve its line of communication with the enterprise and to contribute to resolving the problems. That said, given that the complainant organization alleges a series of actions designed to destroy the trade union, as well as a sharp decline in its membership since 2005 and the dismissal of over 50 union members, and also that the judicial authority has handed down rulings in its favour on two occasions, the Committee considers, without wishing at this stage to pronounce on the substance of the case, that it needs to request specific observations on certain issues raised in the complaint that are examined below and be informed of the outcome of the legal proceedings that have been initiated.
6. 662. With regard to the enterprise’s alleged refusal to accord the various benefits provided for in clause 39 of the collective agreement, the Committee notes the trade union’s statement that the judicial authority of first instance has ruled in its favour with respect to the payment of a contractual bonus. The Committee notes the enterprise’s statement that the benefits payable under the existing collective contract with the complainant union have been respected, including the professional category and seniority allowances, and that an appeal has been lodged against the ruling referred to by the trade union. According to the enterprise, the union is attempting to revive contractual clauses that relate to benefits that were only ever paid once, or to compensation for causes which predated the agreement and which the payment was supposed to have covered once and for all, and to seek payment of the end-of-negotiation bonus in those instances where they resorted to article 369 of the Labour Code; on the other hand, both the Labour Directorate and the enterprise consider that this bonus should be payable only in respect of the collective bargaining process in which it actually arose and cannot be raised again in subsequent negotiations that end in the application of that same provision of the Labour Code.
7. 663. The complainant states that it has initiated legal proceedings with respect to its allegations concerning: (1) non-compliance with clauses of the collective contract according certain benefits, and specifically the non-payment of those benefits to new members of the union; (2) non-payment of the professional category allowance scheduled under the collective contract to workers joining the enterprise, while at the same time offering these same workers a “meals allowance” far greater than that scheduled under the collective contract; (3) non-payment of social security contributions provided for in the collective contracts (1994-2001). The Committee requests the Government to inform it of the outcome of the proceeding before the judicial authority.
8. 664. With regard to the allegation that 17 workers in the parcels unit and routing centre belonging to the complainant union have not been paid the productivity bonus (under the variable remuneration system) agreed upon by the enterprise and the five trade unions that operate there, the Committee notes the former’s statement that the complainant organization is not a party to the collective contract (Appendix 4 of the collective agreement) that was concluded with the most representative trade union and one other, and that the human resources manager offered the complainant trade union the option of modifying the collective contract so as to incorporate the variable remuneration system. The Committee observes that the complainant union has initiated legal proceedings with the judicial authority and requests the Government to inform it of the outcome.
9. 665. With regard to the alleged dismissal of more than 50 members of the complainant trade union since 2005 (including Italo Ferraro Moya in August 2005, Patricia Macarena Cortes Monroy in March 2005, Jaime Amor Illanes and five workers from the Financial Control Unit in March–May 2006, whom the enterprise immediately replaced by new workers who were assigned the same functions in the Unit), the Committee notes the enterprise’s comments on the restructuring and modernization process that took place in 2002 and on the labour stability agreement (in which the complainant union chose not to participate), as well as its claim that the complainant union is referring to specific instances which have nothing to do with the contract in question and which correspond to the exercise of a right that Chile’s labour legislation accords any employer as such. The Committee notes that it has not received specific observations on the dismissal of these workers and requests the Government to send its observations on the matter.
10. 666. With regard to the allegation that the enterprise has pressured workers to resign from the complainant organization and has offered to appoint unionized workers to positions of trust or to promote them from low-level line manager to senior management posts (supposedly so that they will cease to be members of the union), the Committee notes the enterprise’s specific observations denying that it has any anti-union objective and pointing out that promotions to management posts do not take place indiscriminately but are a reflection of the growth and requirements of the enterprise, and that they are better paid and respect the wishes of the worker. Inasmuch as these are very general allegations, the Committee requests the Government and the complainant to inform it whether any complaints have been lodged with the Labour Directorate on the subject and, in the affirmative, to communicate to it the findings of any investigation undertaken.

The Committee's recommendations

1. 667. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to confirm that Correos de Chile has been included in the list of enterprises and trade union organizations found guilty of unfair or anti-union practices (as required by law).
   • (b) The Committee requests the Government to inform it of the outcome of the judicial proceedings initiated by the complainant trade union with respect to: (1) non-compliance with clauses of the collective contract according certain benefits, and specifically the non-payment of those benefits to new members of the union; (2) non-payment of the professional category allowance provided for in the collective contract to workers joining the enterprise, while at the same time offering these same workers a “meals allowance” far greater than that scheduled under the collective contract; (3) non-payment of social security contributions provided for in collective contracts (1994–2001); (4) the allegation that the enterprise has not paid 17 parcels unit and routing centre workers belonging to the complainant union the productivity bonus (under the variable remuneration system) agreed upon by the enterprise and the five trade unions that operate there.
   • (c) The Committee requests the Government to send its observations on the alleged dismissal of more than 50 members of the complainant trade union since 2005 (including Italo Ferraro Moya in August 2005, Patricia Macarena Cortes Monroy in March 2005, Jaime Amor Illanes and five workers from the Financial Control Unit in March–May 2006, whom the enterprise immediately replaced by new workers who were assigned the same functions in the unit).
   • (d) The Committee invites the complainant union to request the mediation of the Labour Relations Unit of the Labour Directorate in order to improve its line of communication with the enterprise and to contribute to resolving the problems.
   • (e) The Committee requests the Government and the complainant to inform it whether any complaints have been lodged concerning the (very general) allegations that the enterprise has pressured workers to resign from the trade union and has offered to appoint low-level line managers to senior management posts (supposedly so that they will cease to be members of the union) or to positions of trust.