Rapport définitif - Rapport No. 377, Mars 2016

Cas no 3053 (Chili) - Date de la plainte: 12-NOV. -13 - Clos

1. 271. The complaint is contained in a communication from the No. 1 Trade Union of Carozzi Enterprises SA dated 24 May 2013, supported by the Amalgamated Workers’ Union of Chile (CUT) in a communication of 12 November 2013.
2. 272. The Government sent its observations in a communication dated 26 February 2015.
3. 273. 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).
4. 274. In its communication of 4 May 2013, the No. 1 Trade Union of Carozzi Enterprises SA alleges anti-union practices by Carozzi Enterprises SA, beginning in August 2010 (following a collective bargaining procedure as a part of which the complainant organization held a strike between 14 July and 6 August 2010) with the aim of undermining the existence of the trade union and disrupting its continuity.
5. 275. The complainant organization states that, on 11 March 2011, it filed an administrative complaint with the labour inspectorate for the following anti-union practices: economic discrimination and pressure from the enterprise to dissuade individuals from joining the trade union or to encourage its existing members to resign or to switch trade unions, as well as dismissals on the basis of participation in the 2010 strike, or of opposition to the enterprise’s demand that employees should change into and out of their working clothes outside of working hours.
6. 276. The complainant organization states that the labour inspectorate (inspection report No. 0506/2011/578) noted the following: (i) the trade union exercised its right to strike as a part of a collective bargaining process, from 14 July to 6 August 2010, when it invoked its right under Section 369 of the Labour Code to call on the employer to sign a new collective agreement with the same terms as those in the contracts in force; (ii) in January 2011, the trade union and the enterprise entered into a new collective bargaining process arising from a complaint of anti-union practices filed by the trade union with the labour inspectorate, which led to the signing of a collective agreement on 17 January, under which a number of benefits were agreed on, including a 200,000 Chilean peso (CLP) end-of-dispute bonus; (iii) between the end of the strike in August 2010 and February 2011, the enterprise terminated 123 labour relationships – 83 owing to alleged business needs (affecting 53 members of the complainant organization), 16 by mutual agreement, 16 on the basis of voluntary redundancy (affecting four members) and eight for alleged dereliction of duty (affecting three members); (iv) during the same period, 168 individuals were recruited (including 141 protection agents, at a time when the employment contracts of 53 workers carrying out that same role had been terminated); (v) from August 2010 to February 2011, 126 workers resigned from the complainant organization and the number of members fell from 552 to 345; (vi) in 2010, there were two wage adjustments relating to another trade union organization present within the enterprise. The first readjustment was carried out in July 2010 (according to the enterprise, it was a legal readjustment that was applied to all the workers, except for those belonging to the complainant organization, who were excluded on the basis that Section 369 of the Labour Code, which had provided the grounds for the extension of the agreement requested by the complainant organization, establishes that the extension shall not include the terms relating to the readjustment of wages and other benefits). The second wage readjustment was carried out in December 2010 (the result of collective bargaining involving the second trade union, referred to above, which led to the signing of a collective agreement on 16 December 2010. That agreement provided for a number of benefits, including a CLP320,000 end-of-dispute bonus for the trade union’s members); and (vii) on examining the wages for the month of January 2011 paid to ten workers who resigned from the complainant organization, it becomes clear that they were each paid the sum of CLP200,000 but that the 75 per cent of the union dues corresponding to the complainant organization was collected from only one of those workers. In the case of the other workers, the dues were collected for the other trade union organizations present within the enterprise.
7. 277. The complainant organization refers to the following legal conclusions of the lawyer responsible for the inspection carried out by the labour inspectorate: (i) the enterprise did not have any grounds for not paying the July 2010 wage readjustment to the complainant organization’s members, given that, contrary to the enterprise’s claims, the Labour Code regulation invoked (Section 369) does not contain any prohibitions relating to the application of readjustments; (ii) the 75 per cent of the union dues of all of the workers who received the CLP200,000 bonus negotiated by the complainant organization should have been collected for that same organization, the enterprise having therefore acted in an unreasonable manner in that regard; and (iii) he stated that the fact that 53 of the 70 dismissals carried out by the enterprise had been based on business needs and circumstances, when those very same conditions had necessitated the recruitment of 168 new workers during the same period, gave cause for concern.
8. 278. The complainant organization states that, during a subsequent mediation session on 10 May 2011, the enterprise pleaded ignorance of the events and evidence noted by the labour inspectorate and, consequently, a complaint was filed with the competent court on 17 May 2011. The complainant organization attaches the corresponding legal ruling of 12 December 2011, in which the Labour Court of First Instance of Valparaíso concluded that the enterprise had engaged in anti-union practices relating to the complainant organization, it having been proven that most of the workers dismissed had belonged to the complainant organization, that pressure had been put on members to resign from the trade union and that economic discrimination had been employed, undermining the functioning of the trade union, discouraging potential members and encouraging existing members to resign. Consequently, the Court ruled that the enterprise must pay a fine of 30 tax units.
9. 279. Furthermore, the complainant organization states that a number of its members were dismissed for having exercised their right to change into their work clothes during working hours (the enterprise claimed that workers should change their clothes prior to entering the workplace). In support of its position, the complainant organization refers to a legal opinion of the Legal Department of the Labour Directorate of 4 January 2011, according to which workers must be paid for time spent changing into regulation work clothes. In support of its allegations, the complainant organization refers to a ruling of the Labour Court of First Instance of Valparaíso of 27 November 2012, according to which three members of the complainant organization (Mr Torres Gajardo, Mr Azúa Flores and Ms Silva Flores), whose work contracts had been terminated after three warnings for having continued to clock in and out of work while wearing non-work clothes, had been wrongfully dismissed.
10. 280. Lastly, the complainant organization refers to a further example of anti-union discrimination in the form of the dismissal of a worker (Ms Tabilo Cisternas) on 19 October 2011, 13 days after she joined the complainant organization (at the time, she was the only person to have done so since the 2010 strike). The complainant organization refers to the ruling of the Labour Court of First Instance of Valparaíso of 21 June 2012, in which the Court held the dismissal to be an act of anti-union discrimination and ordered the enterprise to pay a fine of 30 per cent for wrongful dismissal, amounting to CLP929,162 and CLP3,786,474 in compensation (adding up to approximately US$6,400).
11. 281. In its communication of 26 February 2015, the Government states that, in addition to the complaint of 11 March 2011 referred to in the preceding paragraphs, between 2012 and 2014, the complainant organization filed the following complaints for violation of fundamental rights, resulting in a number of administrative and judicial procedures: (i) a complaint dated 18 July 2012 of dismissal of union members for having joined the complainant organization and failure to collect the 75 per cent of the trade union dues (in that regard, the labour inspectorate only found that the trade union members had been dismissed and the Labour Court of First Instance of Valparaíso, in its ruling of 29 June 2013, found that it had not been proven that anti-union practices had been carried out); (ii) a complaint of 24 May 2012 of illegal dismissal of workers covered by trade union immunity during collective bargaining (with regard to which the court ordered that such conduct should cease and that the workers should be reinstated and paid their wages; requirements that the enterprise subsequently met); (iii) a complaint of 5 August 2013 of failure to pay trade union leave in full (the labour inspectorate did not find any evidence of the practice in question); (iv) a complaint of 26 September 2013 of discrimination on the basis of trade union membership (the labour inspectorate noted that there was a special clocking-in system for workers who were members of the complainant organization and, although no agreement was reached, the Office of the Public Prosecutor deemed that the reparations offered by the enterprise were sufficient and decided not to bring the matter before the competent court); (v) a complaint of 28 October 2013 of acts of discrimination (the labour inspectorate found evidence of harmful practices in the form of an agreement to include in a collective instrument a clause on the payment of trade union leave on terms that were more favourable for one of the three trade unions concerned than for the other two; that situation led to judicial conciliation resulting in an undertaking from the enterprise to treat all trade unions equally); and (vi) a complaint of 26 February 2014 of anti-union practices and discrimination on the basis of trade union membership (in its ruling of 26 January 2015, the Labour Court of First Instance of Valparaíso stated that it had not been proven that anti-union activities had been carried out).
12. 282. Furthermore, the Government reports that, in a letter of 5 February 2015, the enterprise refuted the complainant organization’s allegations relating to the dismissals, that two other trade unions are present within the enterprise in addition to the complainant organization and that the enterprise has a policy of respecting its workers’ forms of organization, allowing them every opportunity to carry out trade union activities and providing them with the necessary facilities.
13. 283. The Government concludes by stating that the labour inspectorate carried out all its duties in compliance with the law, bringing any cases in which it had uncovered evidence of violations of freedom of association before the competent courts. Moreover, it adds that the competent court rejected the complaints following deliberations carried out in line with due process.
14. 284. Lastly, the Government states that it proposed that the regulations governing the classification and sanctioning of anti-union and unfair practices in collective bargaining should be revised as a part of the bill modernizing the labour relations system that was submitted as a part of the legislative process on 29 December 2014. It is hoped that the bill will provide an opportunity to address the shortcomings affecting the legislation safeguarding freedom of association.

C. The Committee’s conclusions

1. 285. The Committee notes that the allegations of anti-union practices raised by the complainant were investigated by the labour inspectorate and were the subject of a number of judicial rulings. As to the results of those procedures, the Committee notes that the labour inspection reports established that there was evidence of anti-union discrimination on various occasions. While in two of the rulings referred to by the Government relating to previous complaints not mentioned by the complainant, the competent court ruled that there was no evidence of anti-union discrimination, in a number of other rulings, provided by the complainant organization, the competent court ruled that the enterprise had carried out acts of anti-union discrimination – both in general, referring to various practices designed to impede the functioning of the organization and to reduce its membership, and to specific cases of dismissal of its members.
2. 286. While observing that the complainant’s allegations were submitted to the competent national administrative and judicial bodies and expressing concern at the acts of anti-union discrimination established in the rulings of those bodies, the Committee requests the Government to take the necessary steps (such as facilitating dialogue between the enterprise and the complainant organization) to help prevent any new conflicts of a similar nature, in particular, any act of anti-union discrimination, from arising within the enterprise in question.
3. 287. The Committee notes that the competent court ordered the enterprise in question to pay a fine which, according to the Government, amounted to the equivalent of approximately US$2,000, deeming that it had been proven that most of the workers dismissed had been members of the complainant, that members had been put under pressure to resign from the complainant and that economic discrimination had been employed; forms of conduct which had impeded the functioning of the trade union, reducing its membership. Given the serious nature of the allegations, the Committee expresses its concern at the failure to impose a sanction sufficiently dissuasive to prevent such acts from being carried out again in the future, in particular taking into account the fact that the court considered that the enterprise had engaged repeatedly in anti-union practices. In this regard, the Committee welcomes the willingness expressed by the Government to revise the regulations governing the classification and sanctioning of anti-union practices in order to address any shortcomings in the legislation in full consultation with the social partners, and requests the Government to inform the Committee of Experts on the Application of Conventions and Recommendations, to which it refers the legislatives aspects of this case, of the measures taken in this regard.

The Committee’s recommendations

1. 288. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While observing that the complainant’s allegations were submitted to the competent national administrative and judicial bodies, and expressing its concern at the acts of anti-union discrimination established in the rulings of those bodies, the Committee requests the Government to take the necessary steps, such as facilitating dialogue between the enterprise and the complainant organization, to help prevent any new conflicts of a similar nature, in particular, acts of anti-union discrimination, within the enterprise in question.
   • (b) The Committee welcomes the willingness expressed by the Government to revise the regulations governing the classification and sanctioning of anti union practices in order to address any shortcomings in the legislation in full consultation with the social partners, and requests the Government to inform the Committee of Experts on the Application of Conventions and Recommendations, to which it refers the legislatives aspects of this case, of the measures taken in this regard.