Rapport intérimaire - Rapport No. 66, 1963

Cas no 271 (Chili) - Date de la plainte: 25-AOÛT -61 - Clos

1. 447. The Committee has already examined this case at its 30th Session (February 1962), when it submitted an interim report in paragraphs 42 to 54 of its 61st Report, which was approved by the Governing Body at its 152nd Session (June 1962).
2. 448. Paragraph 53 of the 61st Report reads as follows:
3. 53. In the present case the Committee has considered it advisable to follow its usual practice and to ask the Director-General to request the Government to inform it of the result of the action instituted and, in particular, to furnish the text of the judgment given and of the legal reasons and conclusions adduced, and in the meantime to adjourn its further examination of the case.
4. 449. The Governing Body's decision to this effect was communicated to the Government of Chile by letter dated 8 June 1962.
5. 450. By a communication dated 4 September 1962 the Chilean Government has furnished the information requested.
6. 451. The original complaint was contained in a communication addressed directly to the I.L.O on 25 August 1961 by the Chilean Confederation of Industrial and Commercial Workers.
7. 452. In a letter dated 4 October 1961 the Chilean Confederation of Privately Employed Clerical Workers submitted a complaint on the same grounds. The Chilean Confederation of Industrial and Commercial Workers supplemented by a letter dated 20 October 1961 the information contained in its first communication. The contents of both letters were communicated to the Government on 3 November 1961. By a communication dated 31 January 1962 the Chilean Confederation of Industrial and Commercial Workers furnished further information, which has been transmitted to the Government.

A. A. The complainants' allegations

• Allegations relating to the Dismissal of a Trade Union Official
  453. 453 In a communication dated 20 November 1961 the Government of Chile presented its observations on the complaints which had been transmitted to it on 3 November 1961.
  454. 454 The complainants allege that Mr. Enrique Sánchez Ossandón, present Chairman of the Chilean Confederation of Industrial and Commercial Workers and a member of the Central Mixed Wages Commission, who was employed by Manufacturas de Cobre (Madeco) S.A., was dismissed from that undertaking for having attended the 45th Session of the International Labour Conference, held in Geneva in June 1961, as adviser to the Chilean Workers' delegate. The complainants add that Mr. Sánchez Ossandón was appointed adviser to the Workers' delegate under Decree No. 412 of 2 June 1961; that on the same day Mr. Sánchez Ossandón informed Madeco of his appointment, sent a copy of the communication to the Labour Inspectorate and asked the Ministry of Labour to notify Madeco of the appointment, which was done on 5 June by official letter No. 425; that Madeco, in its reply on 9 June 1961 to official letter No. 425 stated that the company reserved all the necessary rights in regard to the situation created by Mr. Sánchez Ossandón through having absented himself from his work without previous permission. The complainants enclosed with their complaint a copy of the said Decree No. 412, of the letters dated 2 and 9 June 1961 and of official letter No. 425 of 5 June 1961.
  455. 455 Again, according to the complainants, when Mr. Sánchez Ossandón returned to Chile and reported to the Madeco company to resume his duties, he was not allowed access to his work and was informed that his service was terminated; he reported this to the Labour Inspectorate on 2 August and at the same time lodged a request with the labour courts to be reinstated, since he enjoyed trade union privilege through being a member of the Central Mixed Wages Commission and also Chairman of the Confederation of Metal Workers' Unions. Mr. Sánchez Ossandón brought the case to the notice of the Ministry of Labour, which, according to the complainants, made representations to Madeco, but could not induce it to change its attitude. The complainants add that the attitude of Madeco is merely a continuance of a campaign of outright persecution against Mr. Sánchez Ossandón on the sole ground of his trade union activity.
  456. 456 In its reply dated 20 November 1961 the Government of Chile stated that as soon as the competent authorities were informed of the matter they had instructed the labour services to investigate the facts and demand compliance with the rules protecting the privilege of trade union officials, of whom Mr. Sánchez Ossandón was one. The Government added that the Provincial Labour Inspectorate had taken measures accordingly and, in view of the undertaking's refusal to reinstate Mr. Sánchez Ossandón, had laid information with the labour courts for contravention of the existing rules which forbid dismissal, or the mere suspension of trade union rights, without previous statutory permission. Further, the Government added in its reply, the Ministry of Labour had directly requested Madeco to explain the implications of its decision and if possible to reconsider the step it had taken, but had been unsuccessful in this; a memorandum from the Managing Director of Madeco S.A. contended that Mr. Sánchez Ossandón had not been dismissed but that his work contract had lapsed for reasons which may be summed up as frequent absences from work and abandonment of his post when he went to Geneva. The Government concluded by saying that, since the Ministry of Labour had by process of law formally laid information through the Provincial Labour Inspectorate in Santiago against Madeco for contravention of a law, the matter must now await a formal decision by the court.
  457. 457 The Committee observed at its meeting in February 1962 that there appeared to be no contradiction between the facts as stated by the complainants and the statement by the Government, which not only did not refute them but confirmed them.
  458. 458 The Committee recalled on that occasion that paragraph 2 of article 40 of the Constitution of the I.L.O provides:
• Delegates to the Conference, members of the Governing Body and the Director-General and officials of the Office shall likewise enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation.
  459. 459 At its February 1962 meeting the Committee considered, as it had done in a previous similar case, that no delegate to any organ or conference of the I.L.O should be interfered with in any way to prevent or to deter him from carrying out his functions and that it was evident that if a delegate, after attending a conference convened by the International Labour Organisation, could become the subject of measures such as had been taken in the present case, the possibility of such measures being taken was such as to prevent or to deter the delegate from carrying out his functions. It recognised, however, that the Government appeared at once to have realised the importance of the case and to have intervened directly with the undertaking which employed Mr. Sánchez Ossandón in order to induce it to reinstate him, and had subsequently showed its strong disapproval of the contravention committed by the Madeco company by initiating judicial proceedings which were now passing through the Provincial Labour Inspectorate in Santiago.
  460. 460 The Committee also recalled that in previous cases where a matter was the subject of pending judicial proceedings and where the pending judicial decision might make available information of assistance to the Committee in appreciating whether or not allegations were well founded, it had followed the practice of not proceeding to examine the case until it was informed of the result of the action instituted, and it therefore made the recommendation quoted in paragraph 448 of this document.
  461. 461 The Government attaches to its communication of 4 September 1962 copies of the decisions of the courts of first and second instance in respect of the action against the Madeco company and of the judgment given by the Supreme Court pursuant to the appeal lodged by Madeco against the findings of the court of second instance.
  462. 462 Perusal of these judgments reveals that following an appeal by Mr. Sánchez Ossandón against a ruling that there were insufficient grounds for his action, that decision was quashed, and the court, declaring that the Madeco company was not entitled to terminate Mr. Sánchez Ossandón's employment on the grounds that by absenting himself from work he had caused his contract to lapse unless it applied for statutory permission to do so-and there was no record of any such application having been made-imposed a fine of 500 escudos on the company for contravention of the law. The Supreme Court rejected the appeal lodged by Madeco against this decision.
  463. 463 In a number of earlier cases the Committee has pointed out that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment-such as dismissal, transfer or other prejudicial measures-and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. It has been stated by the Committee that one way of ensuring such protection is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter, except, of course, for serious misconduct. The Committee has also expressed the view that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom.
  464. 464 The Committee observes that in the present case Mr. Sánchez Ossandón appears to have had at his disposal every legal means of defending his rights, and that the company has in fact been fined for contravention of section 9 of Act No. 7295, which lays down that " members of joint salary boards and their substitutes shall be entitled to the immunity from dismissal conferred upon staff delegates and members of the committees of management of trade unions (of sections 155 and 376 of the Labour Code) ". Section 155 of the Labour Code stipulates that a staff delegate may not be dismissed from his employment otherwise than for a reason declared by the competent labour court to be sufficient, while section 376 of the Code states that members of the committees of management of unions may not be dismissed from an undertaking without the consent of the labour judge.
  465. 465 The Committee also observes that it is not clear from the texts of the judgments given in these proceedings whether Mr. Sánchez Ossandón has in fact been reinstated in his post, as would seem to be called for under the provisions quoted in the preceding paragraph and in the light of the ruling given by the Supreme Court of Chile to the effect that " a member of the committee of management of a trade union who is dismissed from his employment without statutory permission having been sought as required under the Labour Code is entitled to reinstatement " (Supreme Court, Appeals, Re vista jurisprudencia al dia, VIIIth Year, 1936, Nos. 354-355, p. 357), or whether the dismissal, irrespective of the fine imposed on the undertaking, has been compensated by the payment of an indemnity to the person concerned.
  466. 466 In view of the above the Committee considers that before it comes to a decision on this aspect of the complaint it should recommend the Governing Body to request the Government to state whether Mr. Sánchez Ossandón has been reinstated with the Madeco company or, if this is not the case, to indicate the manner in which he has been compensated for the harm done to him by his dismissal.
       • Non-Submission of Candidatures for Membership of the Chilean Workers' Delegation at the International Labour Conference for Fear of Reprisals by the Employers
  467. 467 In a later communication dated 29 May 1962 the Chilean Confederation of Industrial and Commercial Workers alleges that its leaders " were unable to apply for membership of the Chilean Workers' delegation to the 46th Session of the International Labour Conference because the Chilean Ministry of Labour would give no guarantee to permit candidatures to be put forward freely for such appointments ". In this connection the complainants refer to the dismissal of Mr. Sánchez Ossandón on his return to the country after attending the 45th Session of the Conference as a member of the Chilean Workers' delegation. The complainants attach to their communication a copy of a letter sent by them to the Ministry of Labour in this respect on 9 April 1962. This communication has been brought to the attention of the Government of Chile in order that it may forward its observations, but these have not been received up to now.
  468. 468 The Committee is not competent to examine questions relating to the credentials of delegates and advisers to the International Labour Conference. Nor is it competent to consider allegations that a government has not treated an occupational organisation in accordance with the Constitution of the I.L.O when designating delegates to the Conference. These are questions which fall solely within the competence of the Credentials Committee of the Conference.
  469. 469 In the present case, however, the allegation does not relate to the manner in which a government designates Workers' delegates but to the fact that the infringements of trade union rights referred to above-by employers and not by the government-have, in view of the fact that no adequate guarantee of safeguarding such trade union rights appears, in the view of the complainants, to exist, exercised pressure on the workers' organisation concerned to cause it to fear the consequences of ever submitting its legitimate claims to the Government to be taken into account when delegates are designated. In other words, this aspect of the case is directly consequential on the allegations examined above.
  470. 470 In consequence the Committee recommends the Governing Body to request the Government to furnish its observations on this particular allegation as soon as possible.

The Committee's recommendations

1. 471. In the circumstances the Committee recommends the Governing Body:
   • (a) to request the Government, having regard to the fact that Mr. Sánchez Ossandón was dismissed by his employer on his return from the International Labour Conference as adviser to the Workers' delegate and that a penalty has been imposed by the Supreme Court on the employer to indicate whether he has been reinstated with the Madeco company or, if this is not the case, in what way he has been compensated for the harm done to him by his dismissal;
   • (b) to request the Government to furnish its observations as soon as possible on the allegation that the Chilean Confederation of Industrial and Commercial Workers was unable to put forward candidates for membership of the Workers' delegation to the 46th Session of the International Labour Conference for fear of reprisals by the employers.