Report in which the committee requests to be kept informed of development - Report No 350, June 2008

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

Allegations: The complainant organization alleges that, with the intention of destroying the trade union, Correos de Chile has dismissed members of the union, fails to comply with provisions of the collective agreement, refuses to meet with its officials, discriminates against its members with respect to a productivity incentive, offers new workers special assignments if they refuse to accept the benefits provided for under the collective agreement and engages 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

1. 326. The Committee last examined this case at its March 2007 meeting [see 344th Report, paras 588–667].
2. 327. The Government sent its observations in a communication dated 26 February 2008.
3. 328. 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. Previous examination of the case

1. 329. At its previous meeting, the Committee made the following recommendations [see 344th Report, para. 667]:
   • (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.

B. The Government’s reply

1. 330. In its communication of 26 February 2008, the Government indicates that, when it was called upon to provide information regarding the circumstances that prompted the complaint, Correos de Chile reported as follows:
2. (1) The enterprise reports that, as indicated in the previous communication, it has continued to have differences of opinion with the National Trade Union of Professionals, Postal Technicians, Supervisors and other Employees of Correos de Chile, especially with regard to the interpretation and application of certain clauses in collective labour agreements.
3. (2) In this regard, the enterprise reaffirms that one of the most significant differences of opinion at the current time relates to the debate on the benefits provided for under the agreement reached with the trade union on 6 December 2000.
4. (3) In the collective bargaining process that followed the entry into force of the abovementioned agreement, the worker members of the union decided to exercise their right under article 369 of the Labour Code to call on the employer to sign a new collective agreement with the same terms as those which were applicable at the time the draft agreement was presented.
5. (4) This prompted a debate between the trade union and the enterprise on how to determine which clauses from the previous agreement should become part of subsequent agreements. According to the union, new agreements should contain the same terms as the 6 December 2000 agreement, regardless of whether these were applicable at the time the draft was presented. This position was disputed by the enterprise, which argued that any benefits provided for in the clauses of previous agreements that were not applicable at the time a draft agreement was presented should not be considered.
6. (5) The discussion on this matter gave rise to three sets of labour court proceedings, two of which resulted in court orders to sign new collective agreements with the same terms as the agreement of 6 December 2000, without revising the dates on which the benefits contested by the enterprise were payable.
7. (6) In order to be more specific, the enterprise points out that one of the abovementioned court orders introduced changes only with regard to the end-of-negotiation bonus while the other did not revise the payment dates of any of the benefits under the new collective agreement.
8. (7) In view of the above, the trade union took enforcement action to ensure payment of the benefits provided for under the new agreements, focusing specifically on the payment of the so-called compensatory meals and transport allowance and the end-of-negotiation bonus.
9. (8) As a result, the debate is now concentrated on determining the legal basis of the two abovementioned bonus payments, a matter which has been referred to the Court for the Collection of Labour and Social Security Contributions in Santiago, which must issue a ruling on the matter.
10. (9) It can be seen from the above that the debate between the union in question and the enterprise is focused on the two abovementioned benefits and that the matter has been submitted to the competent court for consideration and decision.
11. (10) In accordance with the provisions of the Constitution, the authority to hear civil, criminal and labour cases and to enforce judgements in such cases is vested exclusively in the courts established by law; the President of the Republic and the National Congress are prohibited from exercising jurisdictional functions, expressing an opinion on matters that are still pending, reviewing the grounds or content of court rulings or reopening lawsuits that have been settled.
12. (11) Accordingly, the debate on compliance with the collective labour agreements is limited to the two abovementioned benefits and the dispute should be settled by the competent court that deals with such matters in accordance with the legislation currently in force.
13. (12) The same applies to the dispute arising from the alleged non-payment of social security contributions corresponding to certain bonuses payable under collective labour agreements between 1994 and 2000, as it needs to be established that this dispute does not relate to the non-payment of benefits corresponding to these specific bonuses, as the union itself acknowledges that these bonuses have been paid in full and on time. The debate on this matter essentially relates to the fact that, according to the union, the enterprise failed to pay the contributions corresponding to these bonuses, while the enterprise has indicated in response that, according to the information provided by the competent social security institutions, the workers are up to date with regard to declarations and payments of social security contributions, including for the abovementioned period.
14. (13) In this regard, it should be noted in any event that the matter relates to contributions corresponding to bonus payments awarded on national holidays, at Christmas and on postal workers’ day and others which are awarded once a year and that the amounts involved under agreements between 1994 and 2000 did not have a significant impact on the social security benefits of workers or on the total monthly salaries received by the complainants during the period in question.
15. (14) Nevertheless, the matter has also been referred for consideration and decision to the competent courts, which operate within the meaning of the Constitution and the law, in accordance with the principles described above.
16. (15) With regard to the professional category allowance, the enterprise reiterates that it is paid to all workers who are entitled to such a benefit under the relevant collective labour agreements.
17. (16) The discussion with the complainant union was focused on the inclusion in the union’s collective agreement of a professional category allowance 2 per cent higher than the equivalent allowance in other collective agreements, which is incorporated into the monthly pay of workers, and on the decision to award such a benefit to workers joining the union in question who hoped to be covered by the collective agreement applicable in that body.
18. (17) This has meant that the trade union is claiming double payment for the same benefit, in other words, in addition to the professional category allowance that is incorporated into the workers’ monthly pay, another payment is made for the same benefit, which is higher than the amount previously received by the worker and which does not take into account the fact that the agreement with the workers of this union stipulated that no changes would be made with regard to workers joining the union, who should continue to receive the same amount for this benefit as they received previously.
19. (18) It would seem that the differences of opinion on this matter have virtually been settled, as the situation of those who might have given rise to a debate on this issue has been rectified, to the full satisfaction of the union. The union leaders and the representatives of the enterprise are nevertheless still engaged in a permanent dialogue to settle and rectify any ad hoc cases that might arise.
20. (19) The issue of the meals allowance is not currently the subject of any discussion either, except with regard to the claim by the complainant union relating to the compensatory transport and meals allowance under the agreement of 6 December 2000, which, according to the enterprise, is a provision that does not need to be replicated in subsequent agreements.
21. (20) In connection with other legal proceedings relating to benefits provided for under collective labour agreements, such as the annual bonus provided for under paragraph 39 of the agreement of 6 December 2000, which the parties wanted to receive without the deductions that are required by law for this type of payment, it is worth noting that, in two of the three cases that have been filed on this matter, the final ruling of the competent courts was that the action of the complainants was inadmissible, which means that only one of the cases being examined at the first instance remains pending, and the ruling is likely to be against the complainants.
22. (21) It is clear from the foregoing that claims filed by the complainant union have been rejected by the examining courts as being unfounded.
23. (22) With regard to the allegation that 17 workers in the parcels unit and routing centre belonging to the complainant union had not been included in the variable remuneration system, it is important to bear in mind that the system had been established under the collective agreements of the other trade unions in the enterprise and was set out in the annexes to those agreements, and that an amendment of the system was being considered. While the amendment was in the process of being discussed and approved with the leaders of these unions, the complainant union filed a claim indicating that its members had been excluded from the system. The enterprise replied that the system did not apply to the workers of the complainant union because the benefit had not been provided for under the collective agreement with that union.
24. (23) Nevertheless, the enterprise and the complainant union reached an agreement on 13 October 2006 to extend the variable remuneration system to workers belonging to that union, with retroactive effect from the date on which the agreement with the other unions had been signed.
25. (24) Consequently, any differences of opinion arising from the handling of this matter have been largely set aside as a result of the agreement.
26. (25) With regard to the termination of the employment contracts of Italo Ferraro Moya, Patricia Cortés Monroy, Jaime Amor Illanes, five workers whose names are not mentioned and a group of more than 50 members of the complainant trade union, including those mentioned above, the enterprise points out that the Labour Code gives employers the authority to terminate employment contracts in accordance with the operational requirements of the undertaking, establishment or service, provided that the dismissed persons receive compensation in lieu of notice and for years of service, as provided for in the Labour Code.
27. (26) It is clear from the above that the enterprise took various restructuring and modernization measures to enhance its capacity to meet its corporate objectives and to deal with the increasing competition from other bodies that provide similar postal services, leading to the termination of the employment contracts not only of members of the complainant union but also of workers belonging to the other unions existing in the enterprise, which is why it cannot be inferred that the adoption of the abovementioned decisions led to the dismissal only of workers from the complainant union or assumed that the aim of such decisions is to discriminate against the union in question.
28. (27) Furthermore, the dismissed workers have received in full the salary payments, benefits and compensation owed to them by law and those workers whose legal claims led to favourable rulings were granted severance pay with the additional amount provided for in such cases by the Labour Code.
29. (28) As can be seen from the foregoing, the complaints filed by the complainant organization involve disputes that have been referred to the courts for a decision; the parties are fully bound by the ensuing court decisions and may not withdraw cases from the courts which under Chilean legislation are responsible for settling the matters arising from the disputes and refer them to any other body for parallel consideration, as this would be a denial of the jurisdiction and authority of the abovementioned courts and of the rules governing their operation.
30. (29) With regard to the other matters of complaint, the enterprise reiterates that these have been resolved through dialogue, agreements having been reached between the parties to the dispute along the lines mentioned above, that in fact the authority to make certain decisions is vested in employers by the legislation in force in Chile, that when exercising such authority employers should be respectful of or compensate the affected workers in accordance with their legal entitlements and that any such decisions are taken objectively, with the aim of facilitating compliance with the goals of Correos de Chile, as specified in legislation.
31. (30) It is noted that the enterprise has witnessed a positive change, which is characterized by intense dialogue and a commitment to accomplish in full the common endeavours of the workers and the enterprise.
32. (31) This is how the last collective bargaining process, which ended in January 2007, led to a collective agreement, which was the result of an understanding between the parties and benefited approximately 198 members, in other words 4 per cent of the workers who belong to one of the five trade unions of Correos de Chile, and under which the trade union no longer applied the principle of renewing as appropriate the provisions of the previous agreement.
33. (32) The new agreement, which was the result of a specific understanding between the parties, underwent several modifications in 2007, reflecting the shared interests of the parties with regard to how labour relations and terms of remuneration are dealt with.
34. (33) It is also worth noting that the leaders of the complainant trade union have actively participated at meetings, at which the leaders of the other trade unions and the directors of the enterprise have also participated, dealing with issues such as variable remuneration and at which the enterprise has informed workers about relevant aspects of its operation and future plans.
35. (34) In particular, reference is made to the communication of 12 December 2007, in which the complainant trade union informs its members about the election of new officials, all of whom have indicated their intention to join forces with the enterprise on various issues in order to benefit the workers and strengthen Correos de Chile.
36. (35) This, according to the enterprise, goes to show that the relations between the complainant union and the enterprise are currently characterized by dialogue and understanding, as demonstrated by – among other things – the examples set out above.
37. (36) Lastly, on 31 January 2008, the Trade Union of Professionals, Postal Technicians, Supervisors and other Employees of Correos de Chile signed an agreement with Correos de Chile, in which the parties once and for all settled any differences relating to the benefit under the collective labour agreement known as the professional category allowance.
38. (37) As indicated in the abovementioned agreement, which is annexed to this communication, the enterprise acknowledged the legal basis for paying, as of January 2008, the amounts that in each case are scheduled as the professional category allowance to workers belonging to the union in question and whose names are mentioned in the agreement. Accordingly, the enterprise paid on a one-off basis a specified amount to each of the workers mentioned in the abovementioned agreement, in compensation for any non-payment of or discrepancy in this benefit prior to 1 January 2008.
39. (38) The enterprise indicated that, in accordance with this agreement, the trade union and the enterprise had set aside once and for all any differences of opinion relating to the abovementioned benefit, the names of the individual union members entitled to this benefit and the amounts owed to them under this benefit having been clearly specified. In its communication, the enterprise indicates that the foregoing reaffirms the intention of the parties to settle by agreement any issues that might give rise to complaints by the union.

C. The Committee’s conclusions

1. 331. The Committee recalls that, when it last examined this case, it requested the Government: (i) to confirm whether Correos de Chile had been included in the list of enterprises and trade union organizations found guilty of unfair or anti-union practices (as required by law); (ii) 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 agreement 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 agreement 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 agreement; (3) non-payment of social security contributions provided for in collective agreements (1994–2001); (4) the allegation that the enterprise had not paid 17 parcels unit and routing centre workers belonging to the complainant union the productivity bonus agreed upon by the enterprise and the five trade unions that operated there; and (iii) 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). In addition, the Committee: (a) invited 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; and (b) requested the Government and the complainant to inform it whether any complaints had been lodged concerning the (very general) allegations that the enterprise had pressured workers to resign from the trade union and had offered to appoint low-level line managers to senior management posts (supposedly so that they would cease to be members of the union) or to positions of trust.
2. 332. 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 that, according to the Government, the enterprise points out that: (1) the Labour Code gives employers the authority to terminate employment contracts in accordance with the operational requirements of the undertaking, establishment or service, provided that the dismissed persons receive compensation in lieu of notice and for years of service, as provided for in the Labour Code; (2) the enterprise took various restructuring and modernization measures to enhance its capacity to meet its corporate objectives and to deal with the increasing competition from other bodies that provide similar postal services, leading to the termination of the employment contracts not only of members of the complainant union but also of workers belonging to the other unions existing in the enterprise, which is why it cannot be inferred that adoption of the abovementioned decisions led to the dismissal only of workers from the complainant union, or assumed that the aim of such decisions is to discriminate against the union in question; and (3) the dismissed workers have received in full the salary payments, benefits and compensation owed to them by law and those workers whose legal claims led to favourable rulings were granted severance pay with the additional amount provided for in such cases by the Labour Code. In these circumstances, taking into account the information provided by the enterprise, the Committee will not continue its examination of these allegations.
3. 333. The Committee requested 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 agreement 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 agreement 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 agreement; (3) non-payment of social security contributions provided for in collective agreements (1994–2001); (4) the allegation that the enterprise had not paid 17 parcels unit and routing centre workers belonging to the complainant union the productivity bonus agreed upon by the enterprise and the five trade unions that operated there.
4. 334. In this regard, the Committee takes note that, according to the Government, the enterprise provided the following information: (1) the enterprise has continued to have differences of opinion with the Trade Union of Professionals, Postal Technicians, Supervisors and other Employees of Correos de Chile, especially with regard to the interpretation and application of certain clauses in collective labour agreements; (2) one of the most significant differences of opinion at the current time relates to the debate on the benefits provided for under the agreement reached with the trade union on 6 December 2000; (3) in the collective bargaining process that followed the entry into force of this agreement, the worker members of the union decided to call on the employer to sign a new collective agreement with the same terms as those applicable at the time the draft agreement was presented; (4) this gave rise to a debate between the union and the enterprise which led to three sets of labour court proceedings, two of which resulted in court orders to sign new collective agreements with the same terms as the agreement of 6 December 2000, without revising the dates on which the benefits contested by the enterprise were payable; (5) one of the abovementioned court orders revised the dates only for the end-of-negotiation bonus while the other did not revise the dates for any of the benefits included in the new collective agreement; (6) considering the above, the trade union took enforcement action to ensure payment of the benefits provided for under the new agreements, focusing specifically on the payment of the so-called compensatory meals and transport allowance and the end-of-negotiation bonus; (7) the debate is now concentrated on determining the legal basis of the two abovementioned bonus payments, a matter which has been referred to the Court for the Collection of Labour and Social Security Contributions in Santiago, which must issue a ruling on the matter. The dispute must be settled by the competent court dealing with such matters in accordance with the legislation currently in force; (8) the same applies to the dispute arising from the alleged non-payment of social security contributions corresponding to certain bonuses payable under collective labour agreements between 1994 and 2000. This matter has also been referred for consideration and decision to the competent courts, which operate within the meaning of the Constitution and the law, in accordance with the principles described above; (9) with regard to the professional category allowance, the enterprise emphasizes that it is paid to all workers who are entitled to such a benefit under the relevant collective labour agreements. The differences of opinion on this matter have virtually been settled, as the situation of those who might have given rise to debate on this issue has been rectified, to the full satisfaction of the union, notwithstanding that the union leaders and the representatives of the enterprise are engaged in a permanent dialogue to settle and rectify any ad hoc cases that might arise; (10) likewise, the issue of the meals allowance is not currently under discussion; (11) with regard to the allegation that 17 workers in the parcels unit and routing centre belonging to the complainant union had not been included in the variable remuneration system, the enterprise and the complainant union reached an agreement on 13 October 2006 to extend the variable remuneration system to workers belonging to that union, with retroactive effect from the date on which the agreement with the other unions had been signed; and (12) as can be seen from the foregoing, the complaints filed by the complainant organization involve disputes that have been referred to the courts for a decision; the parties are fully bound by the ensuing court decisions and may not withdraw cases from the courts which under Chilean legislation are responsible for settling the matters arising from the disputes and refer them to any other body for parallel consideration, as this would be a denial of the jurisdiction and authority of the abovementioned courts and of the rules governing their operation.
5. 335. In these circumstances, the Committee requests the Government to keep it informed of the judicial decisions that are issued in relation to: (1) the legal basis of the so-called compensatory meals and transport allowance payments and the end-of-negotiation bonus; and (2) the dispute arising from the alleged non-payment of social security contributions corresponding to certain bonuses payable under collective labour agreements between 1994 and 2000. The Committee trusts that the judicial authority will pronounce itself in an expenditious manner.
6. 336. The Committee recalls that it invited 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. In this respect, the Committee notes that, according to the Government, the enterprise indicates that: (1) there has been a positive change, which is characterized by intense dialogue and a commitment to accomplish in full the common endeavours of the workers and the enterprise; (2) this is how the last collective bargaining process, which ended in January 2007, led to a collective agreement, which was the result of an understanding between the parties and which benefited approximately 198 members, under which the trade union stopped applying the principle of renewing the provisions of the previous agreement; (3) the new collective agreement underwent several modifications in 2007, reflecting the shared interests of the parties with regard to how labour relations and terms of remuneration are dealt with; (4) it is worth noting that the leaders of the complainant trade union have actively participated at meetings, at which the leaders of the other trade unions and the directors of the enterprise have also participated, dealing with issues such as variable remuneration and at which the enterprise has informed workers about relevant aspects of its operation and future plans; (5) the relations between the complainant union and the enterprise are currently characterized by dialogue and understanding; (6) on 31 January 2008, the Trade Union of Professionals, Postal Technicians, Supervisors and other Employees of Correos de Chile signed an agreement with Correos de Chile, under which the parties once and for all set aside any differences relating to the benefit under the collective labour agreement known as the professional category allowance; (7) the enterprise acknowledged the legal premise for paying, as of January 2008, the amounts that in each case are scheduled as the professional category allowance, to workers who belong to the union in question and whose names are listed in the agreement. Accordingly, the enterprise paid on a one-off basis a specified amount to each of the workers mentioned in the abovementioned agreement, in compensation for any non-payment of or discrepancy in this benefit prior to 1 January 2008; and (8) the enterprise indicated that, in accordance with this agreement, the union and the enterprise have definitively set aside any differences of opinion relating to this benefit and that the union members entitled to this benefit have been clearly identified, as have been the amounts that each of these members will receive.
7. 337. The Committee takes note of this information with interest, and requests the Government to inform it whether, as a result of the agreement in question, the complainant union has agreed to discontinue the legal proceedings under way relating to the payment of the allowances mentioned in the above paragraphs.
8. 338. With regard to its previous recommendation, in which it requested the Government and the complainant organization to inform it whether any complaints had been lodged concerning the (very general) allegations that the enterprise had pressured workers to resign from the trade union and had offered to appoint low-level line managers to senior management posts (supposedly so that they would cease to be members of the union) or to positions of trust, the Committee, noting that no information has been provided in this respect, will not continue its examination of these allegations.
9. 339. Lastly, the Committee once again requests the Government to confirm whether 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).

The Committee's recommendations

1. 340. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the outcome of any judicial proceedings with respect to: (1) the legal basis of the payments corresponding to the so-called compensatory meals and transport allowance and the end-of-negotiation bonus; and (2) the dispute arising from the alleged non-payment of social security contributions relating to certain bonuses payable under the collective labour agreements between 1994 and 2000. Similarly, the Committee requests the Government to inform it whether, as a result of the agreement concluded between the complainant union and Correos de Chile on 31 January 2008, the legal proceedings in question have been discontinued. The Committee trusts that the judicial authority will pronounce itself in an expeditious manner.
   • (b) The Committee once again requests the Government to confirm whether 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).