Rapport intérimaire - Rapport No. 207, Mars 1981

Cas no 823 (Chili) - Date de la plainte: 12-AOÛT -75 - Clos

150. The last time the Committee examined this case was at its May 1980 Session, when it submitted an interim report to the Governing Body.

1. 150. The last time the Committee examined this case was at its May 1980 Session, when it submitted an interim report to the Governing Body.
2. 151. Since the last examination of the case, the complainant organisations have sent the ILO the following communications: the World Federation of Trade Unions (WFTU) (communications dated 29 May, 17 and 19 June, 3 July and 18 November 1980 and 23 January 1981); the World Confederation of Labour (WCL) (communications dated 2 and 26 June 1980); the Latin American Central of Workers (CLAT) (a communication dated 4 June 1980); the International Federation of Teachers' Unions (IFTU) (a communication of 18 June 1980); the Miners' Trade Unions International (UISM) (communications dated 25 June 1980 and 24 January 1981); the International Confederation of Free Trade Unions (ICFTU) (communications dated 31 October and 13 and 19 November 1980 and 13 and 21 January and 12 February 1981); the Trade Unions International of Public and Allied Employees (a communication dated 17 November 1980); the Permanent Congress of Trade Union Unity of Latin American Workers (CPUSTAL) (a communication dated 22 January 1981); and the "Group of Ten" (5 February 1981).
3. 152. For its part, the Government forwarded observations in communications dated 8 October 1980, the month of November 1980 and 23 and 26 February 1981.
4. 153. Also, when the Governing Body discussed the 202nd Report of the Committee on Freedom of Association in May 1980, the Workers' group requested that a high-level mission be sent to Chile to examine the trade union situation. Following contacts and correspondence exchanged with the Government, the Director-General appointed Mr. Nicolas Valticos, Assistant Director-General, Adviser for International Labour Standards, Mr. Manuel Araoz, Chief of the Freedom of Association Branch, and Mr. Bernard Gernigon, official in the same branch, to carry out that mission, which took place from 1 to 7 December 1980.
5. 154. Before the mission left for Santiago, contacts had been made with the Permanent Delegation of Chile in Geneva to arrange for it to meet various government authorities, in particular the Minister of Labour and Social Welfare, the Minister of Foreign Affairs, the Minister of the Interior and the Minister of Justice. On its arrival in Santiago the mission was handed a work programme where interviews with the Ministers of Labour and Justice, among others, were scheduled. In the end, the Minister of Labour, Mr. Jose Piñera, sent his apologies for being unable to receive the members of the mission and was represented by Mr. L.A. Camus, Undersecretary of State for Labour. The mission also met Messrs. Enrique Montero, Under-Secretary of State for the Interior; Lautaro Pérez Ruiz, Deputy Under-Secretary of State for Justice; Ramón Suárez, Director of Labour; Jaime Lagos, Director of Bilateral Policy at the Ministry of Foreign Affairs; and Leonel Beraud, President of the Court of Appeal of Santiago.
6. 155. The mission also had talks with the President of the Confederation of Manufacturing and Commerce at the headquarters of this central employers' organisation, and with officials of affiliated organisations, namely the National Chamber of Commerce, the National Mining Company, the Association of Banks and Financial Institutions, the National Agricultural Society, the Chilean Chamber of Building and the Industrial Development Association.
7. 156. As concerns workers' organisations, the mission met the leaders of many legally recognised or de facto organisations belonging to all trade union tendencies and covering many branches of activity: a group of trade unionists who were supporters of leaders in the copper, leather and footwear, banking, coal mining, saltpetre, maritime and electricity sectors; the Chilean Confederation of Employees in the Private Sector (CEPCH); the "Group of Ten", which included representatives of workers in the civil service, agriculture, copper mining, postal services, the maritime sector, the iron and steel industry, metalworking, plastics, the railways and social security; the National Trade Union Confederation of Agricultural Workers; Peasant Workers' Unity (an organisation which had been dissolved in October 1978); the National Confederation of copper workers; the "National Trade Union Co-ordinating Body", which included in particular representatives of workers in agriculture, metalworking, building, mining, coal mining and textiles; the Workers' Unitary Front, whose delegation comprised leaders from the textile, ports, teaching, municipal employees', plastics and public works sectors; the Confederation of Unions of Workers in Metalworking, Mining and Assimilated Branches. Over 50 trade union leaders took part in some of these meetings, most of which were held on trade union premises. The mission also spoke to representatives of the Association of Relatives of Persons Who Are under Arrest or Who Have Disappeared. It also had private talks with persons knowledgeable in social affairs.
8. 157. In addition to these meetings the mission visited the Operations Centre of the El Teniente Copper Mines, where it had talks with the management of the undertaking and the trade unions on working conditions and industrial relations and on certain allegations pending before the Committee on Freedom of Association.
9. 158. All the information collected on the spot was the subject of a detailed mission report, which the Committee fully took into account when examining the allegations before it.

B. Legislation on trade union organisations and collective bargaining

1. 159. On 29 June 1979 the Government promulgated several legislative decrees on trade union rights and the right to collective bargaining, in particular Legislative Decrees Nos. 2756 and 2758 known as the "Labour Plan". Subsequently, certain technical amendments were made to these texts, particularly in November 1979 and May 1980. At its November 1979 and May 1980 Sessions, the Committee noted that this legislation was an important step forward and made a number of comments on these texts, especially on the following points: formation of trade unions, procedure for acquiring legal personality, trade union by-laws, elections of trade union leaders, inspection of trade union accounts, prohibition to intervene in partisan political activities, formation of federations and Confederations, trade union rights of public officials, scope and level of collective bargaining, and the right to strike.
2. 160. The mission's report indicates that the new legislation is an improvement over the previous situation where, under Legislative Decree No. 198 adopted in December 1973 immediately after the change of regime, the right to hold trade union elections, the right of collective bargaining and the right to strike had been suspended and the right to hold meetings seriously restricted. Both the Government representatives and the employers' representatives stressed the advance which this legislation represented from the standpoint of freedom of association. It was pointed out that a trade union organisation may acquire legal personality merely by depositing its by-laws, that trade unions can be dissolved only by court order, that there is no governmental control over trade union activities, that the election of new trade union leaders and the approval of trade union by-laws are made by secret ballot, and that workers have the possibility of choosing between organisations of different tendencies.
3. 161. The mission found, however, that the legislation was severely criticised at times, even in trade union circles which do not pursue a policy of systematic opposition to the Government. The workers' representatives - as, to a certain degree, the employers' representatives - stressed in particular that they had not been consulted about the trade union legislation or the labour policy.
4. 162. In the Committee's opinion, such an absence of dialogue - which the mission found far more marked than in 1974 during the visit of the Fact-Finding and Conciliation Commission - can only prejudice the interests of workers, the development of labour relations and social progress in general. The Committee thinks it useful here to refer to the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), Paragraph 1 of which provides that measures should be taken to promote effective consultation and co-operation between public authorities and employers' and workers' organisations without discrimination of any kind against these organisations. In accordance with Paragraph 5 of the Recommendation, such consultation should aim at ensuring that the public authorities seek the views, advice and assistance of these organisations, particularly in the preparation and implementation of laws and regulations affecting their interests.
5. 163. The missions report reveals that the failure to consult the trade union organisations is only one aspect of the diminished role played by the national federations and Confederations in labour relations. Major obstacles are placed in the way of their establishment (requirement of at least 20 organisations for constituting a Confederation) or their survival (requirement for individual trade unions to renew their membership of federations every two years). Lastly and above all, under the new legislation federations and Confederations do not have the right either to bargain collectively or to call work stoppages. The trade union movement is thus deprived, at its highest level, of the rights essential for the protection of the workers' interests. Consequently, the trade unions engaged in collective bargaining - i.e. the plant unions - often find themselves at a disadvantage in negotiating with the management, especially as the right to strike is greatly limited by certain legislative provisions under which enterprises may recruit staff during the strike, as there is voluntary dismissal of workers if they do not recommence work within a period of 60 days, and because an excessive number of enterprises are deemed to be essential enterprises for which work stoppages are prohibited.
6. 164. The report also refers to other obstacles to the free operation of the trade unions which seriously limit their possibilities of effective action, such as the control exercised by the Directorate of Labour over trade union management and the requirement for a sworn official to be present at voting during trade union meetings.
7. 165. A large body of workers is not covered by some of the safeguards granted by the legislation. By reason of the legal impossibility of forming plant unions having less than 25 members, workers in small enterprises, for example, are not in a position to form trade unions for their specific activities and are therefore unable to join organisations having the right of collective bargaining. Lastly, workers in the public sector and in the maritime sector do not come within the scope of the trade union legislation. Specific regulations for these categories of workers are now under study.
8. 166. From a perusal of the missions report, the Committee has noted that the legislative provisions criticised most severely and most frequently by the trade union organisations are precisely those on which it had commented in November 1979 when analysing the "Labour Plan". The Committee therefore considers that it would be necessary to amend the trade union legislation with a view to more effective application of the principles of freedom of association and hence of greater social justice.
9. 167. In these circumstances, it is regrettable that in the absence of the Minister of Labour, the findings arrived at by the mission could not be the subject of a true exchange of views with the government authorities and that they were unable to inform the mission whether such amendments or a change in government policy in the field of trade union rights could be contemplated in future. The Committee nevertheless trusts that the necessary legislative amendments will be introduced shortly in the light of the recommendations made by it. It would also like to be kept informed of any subsequent developments in this connection.

C. Dissolution of trade union organisations

1. 168. Allegations were previously made regarding the dissolution by the Government of seven trade union organisations in October 1978. According to the Government, the conduct of the dissolved organisations showed that their means of action and objectives coincided with the principles and aims of Marxist doctrine. The organisations in question had brought appeals to the Court of Appeal and the Supreme Court, which dismissed them.
2. 169. In a document of the external Committee of the Single Central Organisation of Chilean Workers, attached to the communications of the WFTU and the ICFTU, it was also mentioned that the Supreme Court had dissolved the trade union of the Santiago Union club on the ground that a trade union cannot exist in a non-profit making institution.
3. 170. More recent allegations related to the action taken by the authorities against the Unitary Workers' Front (FUT).
4. 171. During the mission talks were held with the leaders of several of the federations and Confederations dissolved in October. 1978. Although these organisations continue to have a de facto existence, their leaders mentioned the great difficulties which they encounter in trying to keep them in operation.
5. 172. For its part, the Government stated in its communication of November 1980 that the dissolution of the organisations in question was decided by law and not by administrative procedure. None of those organisations was engaged in labour activities. On the contrary, according to the Government, their activities were purely political and were carried on only by a few leaders. The government authorities also told the mission that the measures to dissolve those organisations were taken before the "Labour Plan" was promulgated and that dissolution of trade union organisations under the new legislation can be made only by judicial procedure. They also stressed that workers, including those who belonged to the dissolved trade unions, are entitled to form the organisations they wish, provided the law is observed.
6. 173. Regarding the dissolution of the trade union of the Santiago Union Club, the Government explained in its communication of November 1980 that the employer had argued before the courts that the trade union established in 1966, when the former Labour Code was still in force, had no legal existence. Under that Code, industrial trade unions could not be formed in non-profit making establishments. The Directorate of Labour, like the workers themselves, maintained on the contrary that the union had a legal existence. In the end, the court ruled in favour of the complainant and dissolved the organisation in February 1980. The Government pointed out, however, that as of 15 October 1980 no administrative action had yet been taken to strike the organisation from the trade union register and that the workers concerned could at all events form another trade union or transform the existing one in accordance - with the new legislation.
7. 174. The case for the Unitary Workers' Front was dismissed by the judge and confirmed by the Santiago Court of Appeal in October 1980.
8. 175. The Committee takes note of the explanations supplied by the Government concerning the dissolution of seven federations and Confederations in October 1978. It wishes to point out in this connection that dissolution of trade unions by the Executive in the exercise of legislative powers does not provide safeguards, any more than dissolution by administrative procedure for the rights of the defence. These rights can be guaranteed only by a normal judiciary procedure, which the Committee regards as indispensable. The Committee notes that under the new trade union legislation, workers' organisations can only be dissolved by judicial means. Concerning the liquidation of the funds and assets of the dissolved organisations, the Committee has been guided in cases of this kind by the criterion that, when an organisation is dissolved, its assets should eventually be distributed among its former members or handed over to the organisation that succeeds it. The Committee has also pointed out that the successor organisation should be understood to mean an organisation or organisations pursuing the aims for which the dissolved unions were established, and pursuing them in the same spirit.
9. 176. As regards the trade union of the Union Club, the Committee notes that it was dissolved by judiciary proceedings on the basis of the former provisions of the Labour Code and that the workers concerned may now form an organisation in accordance with the new legislation.

D. Dismissal of trade unionists

1. 177. Various complaints, which were either mentioned in the Committee's 202nd Report or received since then, referred to dismissals of trade unionists in a number of undertakings, especially Hilanderia Andina SA, CTI Fensa Mademsa, the Copper Company of Chile (El Teniente division and Chuquicamata centre), the Latacen company, the Jorge Rivet Moulin company and the Chilean and North American Cultural Institute. Other communications recently received state that there have been dismissals of leaders of the public sector workers' organisations, in particular, the National Revenue Employees' Association (ANEF), the Association of Social Security Auxiliaries and trade unionists from the taxation department.
2. 178. From the information supplied by the Government in its communication of November 1980 or in the documents handed to the mission, it appears that the dismissals at Hilandería Andina SA, CTI Fensa Mademsa and the Chilean and North American Cultural Institute were due to economic or financial reasons. In the last case, the workers filed an appeal with the courts.
3. 179. Regarding the dismissals at the Copper Company of Chile (El Teniente division), the Government stated that, following the appeal made by the workers, the labour court of Rancagua ordered the company to reinstate the dismissed workers or pay them compensation. The company opted for the second course. The labour court also gave a ruling in favour of the trade union leaders dismissed at the Chuquicamata centre and ordered their reinstatement. The company has complied with the court's decision and paid these leaders compensation corresponding to the period of dismissal. Three of the workers dismissed from the company Jorge Rivet Moulin filed an appeal with the courts which resulted in the payment of compensation. Concerning the dismissals of trade union leaders from the Latacen company, the Directorate of Labour informed the mission that the workers concerned, after an attempt at conciliation by the Labour Inspectorate had failed, filed an appeal with the labour court, which is now being examined.
4. 180. The mission had an opportunity to meet the trade union leaders of the National Revenue Employees' Association (ANEF) who had been dismissed. According to the trade unionists and, in particular, the President of ANEF, who had been removed from his functions within the National Directorate of industry and commerce, these measures were taken because of the trade union activities of the workers concerned. The Minister for Economic Affairs, on the other hand, asserted in a statement to the press that the dismissals were due to a reorganisation of the service in question.
5. 181. The Committee notes that some of the dismissals of trade unionists were due to economic or financial reasons. While the Committee is not competent to judge the advisability or not of dismissals of this nature, in the present instance it observes that there were court proceedings in several cases which resulted in compensation paid to the workers dismissed and even, in one case, to their reinstatement. The Committee therefore considers it appropriate to recall the importance of effective protection against dismissals on account of trade union activities and to point out that in cases of dismissals for economic reasons, measures discriminating against trade unions taken under this pretext should not be authorised.
6. 182. Regarding the dismissals of ANEF leaders, the Committee points out that the lack of legal recognition of the trade union rights of government employees, and the resulting lack of protection for trade union militants, can only encourage the adoption of measures prejudicial to the leaders of de facto organisations existing in this sector.
7. 183. In these circumstances, the Committee requests the Government to take measures to permit the reinstatement of the dismissed trade unionists.

E. Arrest and disappearance of trade unionists

1. 184. At various stages in examining this case, the Committee has received allegations relating to the arrest and disappearance of trade unionists or former trade unionists. In March 1979, the Government stated that the Santiago Court of Appeal had appointed one of its judges to hear the cases concerning persons presumed to have disappeared while on trial before tribunals in its jurisdiction. These cases concerned 36 of the persons mentioned in the complaints.
2. 185. More recently, complaints were lodged concerning action taken against various trade union leaders, the arrest of leaders of the National Federation of Metallurgical Unions (FENSIMET) and the placing under forced residence of persons arrested on May Day 1980 and agricultural trade union leaders at Curicó. Other allegations related to the arrest of Mr. Pedro Enriquez, former secretary for Youth of the CUT, on 13 November 1980, and of Mr. Alvarez Sepúlveda, a metalworkers' leader, on 18 November 1980.
3. 186. Lastly, communications from several complainant organisations (ICFTU, WFTU, CPUSTAL, UISM) dated January 1981 have reported the arrest of Manuel Bustos and Alamiro Guzman, Chairman and Secretary-General of the National Trade Union Co-ordinating Committee, respectively, whom the members of the mission had met while in Chile. They were arrested allegedly for having acted as representatives of an unregistered organisation.
4. 187. As regards the missing persons, the President of the Santiago Court of Appeal told the mission that the inquiry was going ahead and that the judge dealing with the case had not yet been able to take a final decision. In this connection, the mission was told that the amnesty law adopted by the Government in April 1978 prevented action being taken against security officers who may have been involved in the disappearances and consequently the cases before the courts could not be concluded.
5. 188. According to the government authorities, the persons placed under house arrest following the celebration of May Day were activists who were not trade union leaders and who had created disturbances and provoked violence in the streets. Likewise, there were no trade union leaders among the seven persons living at Curicó who had been placed under house arrest for disturbance of the peace. Only one of them had been engaged in trade union activities in 1973.
6. 189. As regards the pending trials on which the Committee and Governing Body had requested information in May 1980, the Government stated that the cases against Mr. Bobadilla, President of the National Federation of Textile Workers, and Mr. Guzman, President of the National Industrial Mining Federation, were dismissed and the dismissals confirmed by the Santiago Court of Appeal. Proceedings had been brought against these leaders for having acted as representatives of organisations without legal personality. The Government also stated that these trade union leaders had enjoyed complete freedom throughout the trial. Regarding Juan Jara, President of the Taxi Drivers' Trade Union, who had been accused, according to the complainants, of having organised a May Day demonstration, the Government stated that the Santiago Court of Appeal had suspended the prison sentence which was warranted by the elements contained in the dossier. Proceedings have now been brought against two other persons whom the complainants said had been arrested, Victor Muñoz and Gustavo Poblete, the first for being in possession of false identity papers and the second for subversive activities. According to the Government, these two persons are not trade union leaders. Regarding the five leaders of the National Federation of Metallurgical unions whom the complainants alleged had been detained for three days and prosecuted, the Government stated that the persons in question were the subject of a complaint by the Ministry of the interior for having acted as representatives of other persons without the authorisation to do so. They were acquitted by the court of first instance, but given a suspended prison sentence by the Court of Appeal.
7. 190. As regards Mr. Pedro Enriquez, the Ministry of the Interior told the mission that this person had been arrested for engaging in activities against the security of the State, that the inquiry had established that he had used false identity papers, and that he had been placed at the disposal of the criminal judge in Santiago. Lastly, the mission was unable to obtain any information before leaving Chile concerning the arrest of Mr. Alvarez Sepúlveda. Since then, the Government has stated that the person referred to in the allegations, whose real name is Alvaro Sepúlveda, was released three days after his arrest. The Court of Appeal of Santiago, which had before it an appeal of habeas corpus in this connection, has been informed of the release of this person.
8. 191. As regards Mr. Alamiro Guzman and Manuel Bustos, the Government stated in its communication of 23 February 1981 that the. Minister of the Interior, by virtue of the powers accorded to him under Legislative Decree No. 2347 of 1978, appealed to the Court of Appeal of Santiago against these persons for having acted as representatives of workers without the authorisation to do so through a legally non-existing body called "the National Trade Union Co-ordinating Body". The investigating magistrate did not uphold the charges against these persons who were released on bail. The case is continuing before an ordinary civil judicial body which is independent of the executive authorities.

F. F. The Committee's conclusions

1. 192. The Committee notes, first of all, that no new elements have been produced in the cases pending before the courts concerning the missing trade unionists or former trade unionists. Furthermore, according to the information obtained by the mission from various sources, these cases could not be concluded because the amnesty law adopted by the Government in 1978 did not allow proceedings to be brought against the security officers who might be involved in the disappearances. In these conditions, the Committee must keenly regret that the inquiries undertaken by the judicial bodies were not able to clarify the circumstances of these disappearances. It would like to be kept informed of any subsequent developments in the procedures under way.
2. 193. The Committee takes note of the observations supplied by the Government on the placing under house arrest, detention and sentencing of the persons mentioned by the complainants. It notes that the reply conflicts with the allegations since the complainants claim that these various measures are related to the trade union activities of the persons concerned whereas the Government states that they are the consequence of breaking the law, disturbing the peace or engaging in subversive activities. The Committee however must observe that in most of the cases the Government has not supplied, in support of its statements, detailed information about the precise facts for which the persons mentioned by the complainants are blamed.
3. 194. Regarding the placing of persons under house arrest, the Committee notes that a number of such measures were taken as a result of a demonstration organised on May Day, which is traditionally a day of trade union action. It also observes that these procedures, to which the Government resorted on several occasions, are of an administrative nature, i.e. without any safeguard for the rights of the defence.
4. 195. In addition, the Committee notes that court proceedings have been brought against various leaders of national federations, at the instigation of the Ministry of the Interior, for having acted as representatives of other persons without the authorisation to do so or as representatives of unregistered organisations while some have been acquitted, others have on the contrary been given suspended prison sentences. In the Committee's view, such action can only be detrimental to the return to normal trade union life. Furthermore, the Committee cannot help but see a link between these cases and the difficulties imposed by the legislation for establishing and maintaining in existence federations and Confederations.
5. 196. Lastly, the Committee notes that Mr. Alvaro Sepúlveda was released three days after his arrest and that the cases concerning Mr. Guzmán and Mr. Bustos, who are now released on bail, are continuing before the courts.

The Committee's recommendations

1. 197. In these circumstances, the Committee recommends the Governing Body to adopt the present interim report, in particular the following conclusions;
   • The Committee takes note of the information collected by the ILO mission which visited Chile in December 1980.
   • As regards the trade union legislation, the Committee regrets that in the absence of the Minister of Labour, the findings arrived at by the mission could not be the subject of a true exchange of views with the government authorities and that they were unable to indicate whether amendments or a change in government policy on trade union matters could be contemplated. It nevertheless trusts that the necessary legislative amendments will be introduced shortly with a view to more effective application of the principles of freedom of association and hence greater social justice. With this in mind, the Committee wishes to underline the interest which organisations of employers and workers have in consultation during the preparation and application of legislation which affects their interests. It requests the Government to keep it informed of any subsequent developments concerning the trade union legislation.
   • The Committee must also recall that application of a normal judicial procedure is essential in cases where trade union organisations are dissolved, a procedure which was not observed in the case of seven federations and Confederations dissolved in 1978. The Committee notes that the new trade union legislation provides that workers' organisations can only be dissolved by judicial means and that this procedure was followed in the case of the trade union of the Santiago Union Club.
   • Regarding the dismissals of trade unionists, the Committee wishes to stress the importance of effective protection against acts of anti-union discrimination. As regards more specifically the dismissals in the public sector, the Committee considers that the lack of legal recognition of the trade union rights of government employees can only encourage the adoption of measures prejudicial to the leaders of de facto organisations existing in this sector. Consequently, it requests the Government to take measures to permit the reinstatement of the dismissed trade unionists.
   • Concerning the disappearance and arrest of trade unionists, the Committee must observe that no new elements have been produced in the cases concerning missing trade unionists or former trade unionists. The Committee keenly regrets that the inquiries undertaken by the judicial bodies have not been able to clarify the circumstances of these disappearances. It requests the Government to keep it informed of any subsequent development in the procedures under way.
   • As regards the placing of persons under house arrest, the Committee must point out that these measures, some of which were taken as a result of May Day celebrations, are of an administrative nature and consequently the rights of the defence are not safeguarded.
   • The Committee also considers that the proceedings brought by the Ministry of the Interior against the leaders of national federations can only be detrimental to a return to normal trade union life.
   • It requests the Government to supply information on the results of the court cases instituted against Mr. Guzmán and Mr. Bustos.