Definitive Report - REPORT_NO151, November 1975

1. 30. The Committee examined this case in February and May 1973, when it submitted to the Governing Body an interim report and addendum to that report given in paragraphs 41 to 50 of its 136th Report and paragraphs 1 to 7 of the addendum to the 136th Report.
2. 31. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 32. The Committee recalls that the allegations related to an event which occurred before the change in government on 11 September 1973, involving mainly the following facts. A group of sixteen trade unionists who, at a union meeting, had voted against the government takeover of the firm for which they worked, were prevented from entering their place of work by other workers in the firm. Confronted with this situation, the controller of the undertaking decided to dismiss ten of the trade unionists and set in motion the legal procedure to secure the waiving of the provisions concerning trade union immunity from dismissal in the case of the other six (five of whom were trade union leaders). Shortly afterwards, these leaders gave up their trade union functions on being censured by a union meeting, thereby losing the right, as trade unionists, to immunity against dismissal. Subsequently, one of them resigned from his employment and the other four were dismissed "for reasons of service".
2. 33. From the information available, it would appear that the action taken by the controller of the firm against the trade unionists was motivated partly by the need to deal with the situation that had arisen when the workers refused to allow the trade unionists to enter the undertaking. It would also appear, however, that these measures were applied as a penalty for the attitude taken at a trade union meeting against the takeover ordered by the Government. The Committee considered that a distinction should be made between, on the one hand, the responsibility of trade unionists towards their organisation in the event of its rules being infringed and, on the other hand, the actions of such trade unionists which might constitute failure to respect obligations inherent in their employment relations. If a particular form of behaviour on the part of certain members or leaders within the trade union organisation did not at the same time constitute a violation of their duties as workers, the penalties that might, on such grounds, be applied to them by an employer would amount to acts of discrimination likely to undermine freedom of association in connection with employment and workers should be protected against such acts.
3. 34. The Committee observed that the sixteen workers referred to in the complaint had appealed to the courts for recognition of their rights and that the relevant proceedings were still pending. It considered that the decisions reached were likely to provide it with further information on which to base its conclusions and recommended the Governing Body to draw the attention of the Government to the considerations set forth in the preceding paragraph and to request it to provide the texts of the court decisions together with the grounds adduced therefor.
4. 35. In a communication of 28 February 1973, the Government made certain observations on the Committee's conclusions and requested that they be examined by the Governing Body in conjunction with the report on the case. The Government disagreed in particular with the Committee's considerations as set out in paragraph 4 above. It stated that the takeover had been carried out in agreement with the workers, so that it could in no way be supposed that it had wished to infringe freedom of association in connection with employment and that the employees in question had acted as agents of the firm taken over, which had, for political reasons, suspended the manufacture and distribution of its products.
5. 36. The Committee stated that it had taken into account the fact that the controller had suspended from employment five trade union leaders and the staff representative (pending a subsequent application to the courts for authorisation to dismiss them) and had decided to terminate the contract of employment of ten other employees who had voted with the former against the takeover, at a union meeting, on the grounds that they had "repeatedly failed to show the loyalty due to their fellow workers and to the undertaking as regards both the production and the marketing of its products". The Committee still considered that both the facts reported and the reasons given by the controller for dismissing trade unionists not enjoying special immunity revealed a relation of cause and effect between the attitude to the takeover taken by the leaders and members of the union and the measures taken against them by the controller. This attitude had been decided upon at a union meeting and had taken the concrete form of a vote against the takeover; it did not appear from the information available that there had been any further action on the part of those concerned, such as an individual or collective stoppage of work. In other words, it was an attitude taken by certain trade unionists within the context of their union activities and it had no bearing on the discharge of their duties under their contract of employment. The Committee specified that it had never considered the taking over of the firm by the Government as an act of anti-union discrimination.
6. 37. In these circumstances, the Committee recommended the Governing Body to take note of the Government's observations and to decide that it was appropriate to adhere to the conclusions reached previously.
7. 38. The Professional Trade Union of Employees of the Maipu factory of Rayón Said Industrias Quimicas SA addressed a further communication to the ILO on 19 March 1975. It referred to the change in government which took place in Chile on 11 September 1973 and stated that the dismissed workers had since been reinstated. On 20 March 1975 the Government submitted a large volume of documentation on the matter including in particular the text of two judgments dated 16 February 1973 and 16 February 1974, ordering the undertaking to reinstate four of the dismissed workers and to pay the wages and allowances which would have been payable during the period in which work was suspended.

39. The Committee notes this new information and recommends the Governing Body to decide that this case does not call for further examination.