Interim Report - REPORT_NO259, November 1988

1. 360. The Committee on Freedom of Association has examined this case on a number of occasions, most recently at its May 1988 meeting, when it submitted an interim report to the Governing Body. (See 256th Report, paras. 255-281, approved by the Governing Body at its 240th Session (May-June 1988).)
2. 361. Since then the ILO has received the following communications from the complainants: International Confederation of Free Trade Unions (ICFTU): 27 May, 16 June, 6 July and 18 August 1988; College of Chilean Teachers: 30 May 1988; National Grouping of Workers (CNT): 14 and 24 June and 25 August 1988; Union of Workers in the "Dos en Uno" foodstore: 17 and 22 June 1988; National Confederation of Federations and Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH): 21 July 1988; World Federation of Trade Unions (WFTU): 22 August 1988; National Federation of Petroleum and Related Workers of Chile: 7 September 1988; and World Confederation of Labour (WCL): 8 September 1988. The Government sent its observations in communications dated 6 June, 28 July, 24 August, 20 September and 31 October 1988.
3. 362. 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. Previous examination of the case

1. 363. At its 240th Session in May-June 1988, the Governing Body approved the Committee's recommendations on: the ban on returning to the country imposed on a number of trade unionists, and specifically Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro, in respect of whom the Committee urged the Government to lift the ban and to keep the Committee informed of developments; the restoring of Chilean nationality to trade unionist Luis Meneses Aranda; the legal position of union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, in respect of whom the Committee noted with interest the verdict of not guilty handed down by the Santiago Court of Appeal and expressed the hope that they would continue to exercise their trade union rights normally in the future. Lastly, the Committee invited the Government to supply its observations on the allegations on which no reply had yet been received, namely: the communication from the COPESA (Consorcio Periodístico de Chile, SA) Workers' Trade Union No. 1 concerning the dismissal of workers from this union who resisted pressure by the undertaking to persuade them to forgo a cost-of-living pay increase which had been agreed to in a collective agreement made with the undertaking; the complaint submitted by the CTGACH concerning pressure to which workers in this sector are subjected to prevent them from organising, mass dismissals following the signing of collective agreements, the dissolution of unions in this sector, pressure by the undertaking to force workers to sign individual contracts instead of enjoying the benefits stemming from collective agreements, the use of contract labour as a means of avoiding unionisation, and the dismissal of trade union leaders and the situation in unions having members in a number of different undertakings; the complaint submitted by the ICFTU and CNT concerning the dismissal of 17 trade union leaders (including Miguel Muñoz and José Criado of the CNT) and over 100 workers from the State Railway Undertaking for having presented the Government with petitions concerning social and economic claims and for having called a strike when the latter failed to respond; the allegations made by CONTEXTIL concerning difficulties faced by workers in the Curtiembre Interamericana Works Union in reaching a collective agreement with the undertaking and on the unfair labour practices of the said undertaking against the workers involved in the committee working on the draft collective agreement.

B. New allegations

1. 364. In a communication dated 27 May 1988, the ICFTU expresses its concern at the announcement of the abduction of the journalist Juan Pablo Cárdenas, director of the review Análisis, in Santiago on Wednesday, 25 May when he was entering the prison to serve a 541-day night detention sentence. The letter states that he was violently abducted by heavily armed unidentified civilians and that nothing is known of the present whereabouts of Mr. Cárdenas, who is a member of the Journalists' Association of Chile, of the Latin American Federation of Journalists and of the Chilean Writers' Society. Mr. Cárdenas has been imprisoned on three occasions, charged with insulting and slandering the military government, his review has been suspended and the premises searched by the military authorities several times. The ICFTU's letter adds that in September 1986 the international editor of the review, Mr. José Carrasco Tapia, was kidnapped and killed by an armed group which has still not been brought to justice.
2. 365. In a letter dated 16 June 1988, the ICFTU states that trade unionist Freddy Nuñez, assistant General Secretary of the Workers' Central Democratic Organisation (CDT) and director of the "Fuente Alto" paperworks, went to the police of his own free will to report finding a secret chamber in his house in the Quinta Normal district of Santiago which he had been renting out for a long time; the police immediately detained him and kept him in solitary confinement for five days and then released him unconditionally. He was subsequently rearrested and kept in solitary confinement in the Santiago prison, where he had been for 11 days (at the time the letter was written). The military prosecutor was to decide by 15 June whether Mr. Nuñez would be released or remain in prison. The ICFTU's letter expressed concern for the life of this trade unionist since he was in poor health as a result of the long period spent in solitary confinement and the ill-treatment to which he had been subjected.
3. 366. In a further communication, dated 6 July 1988, the ICFTU denounces the violent repression by the police of the march organised by the National Grouping of Workers (CNT) to obtain a response from the authorities to their demands. The march was broken up violently and an unspecified number of workers taking part in it were injured and arrested; Mr. Jorge Millán, vice-chairman of the CNT and chairman of the CEPCH (Confederation of Private Employees of Chile) is still under arrest.
4. 367. In its letter of 18 August 1988, the ICFTU denounces the sentencing, on 17 August, of Manuel Bustos and Arturo Martínez to 541 days' internal exile. Union leader Bustos was to serve his sentence at Parral, 340 kilometres south of Santiago, and union leader Martínez was to serve his in Chanaral, 960 kilometres north of Santiago. This sentence of internal exile was imposed because these trade unionists had called the strike of 7 October 1987 in support of socio-economic claims. The Court of Appeal had previously closed the case but the military government insisted on bringing it before the Supreme Court, which finally gave this verdict. The vice-chairman of the CNT, Moisés Labraña, was also sentenced to 60 days' imprisonment but was released on parole. These sentences were delivered 48 hours before the holding of the constituent assembly of the new Single Central Organisation of Chilean Workers (CUT), whose main organisers were union leaders Bustos and Martínez.
5. 368. In a letter dated 22 August 1988, the WFTU also denounces the sentences passed on the unionists Bustos, Martínez and Labraña.
6. 369. In a letter dated 14 June 1988 the CNT explains that with a view to celebrating International Labour Day on 1 May, trade union organisations throughout the country requested permission from the competent government authorities to hold public demonstrations. In most cases these requests were turned down merely on the grounds of keeping public order. In the few cases where permission was granted, the demonstrations were to be held elsewhere than in the places requested, outside the city centres which would be difficult for the workers to get to. In all cases - whether or not permission had been granted to hold demonstrations - the authorities organised an impressive turnout of police forces to intimidate the population or repress the workers' legitimate right to demonstrate. This is how the May Day events that were held in various towns ended up with dozens of persons injured and hundreds under arrest.
7. 370. The CNT refers in its letter to events in the town of Iquique, the place selected by the Government for the official May Day ceremony. The official celebrations were presided over by General Augusto Pinochet and were given wide publicity. Vast numbers of people and army forces were transported there from other parts of the country. The Regional Grouping of Workers of Iquique, with due notice, requested permission to organise a public event for workers in the town. The permission was refused in accordance with the terms of a regional military decree banning all public demonstrations, with the exception, of course, of the official one organised by the Government. The workers of Iquique, like those in other towns where demonstrations were not allowed, gathered in the local cathedral to take part in the religious ceremony commemorating San José Obrero (the workers' patron saint) at which Monsignor Javier Prado A, the bishop of the diocese, officiated. Following the service, the workers met outside the church to listen to Arturo Martínez, general secretary of the National Grouping of Workers. Since the official ban meant that no public demonstrations could be held, the workers moved in an orderly manner towards the Regional College of Teachers which, in a gesture of solidarity, had made its union office available for a meeting. On their way to the college, the lines of workers were intercepted and set upon violently by special forces of armed police, who injured and arrested dozens of people. Among these was Julio Prieto Zárate, a worker who was hit by a tear-gas bomb fired from a shotgun, and the director of the radio Iquique FM, Fernando Muñoz Marinkovic, whose arm was broken after he was attacked and beaten with truncheons. As a result of the police repression, only some 150 people managed to reach the union premises to hold the indoor meeting.
8. 371. The letter adds that as the meeting was beginning, with greetings from Jorge Pavéz, general secretary of the National College of Teachers, the police burst into the building, breaking doors and windows and letting off tear-gas bombs. They then withdrew, blocking the exits and forming a cordon around the building. This caused panic among the workers and their families who were inside and a disorderly and hysterical attempt to escape ensued. As the building was vacated, the police, who were not content with the material damage they had caused or with their physical and mental aggression, set about beating up and arresting people as they came out.
9. 372. The letter goes on to say that the workers in the city of Valparaíso were also prevented from celebrating May Day. The Regional Grouping of Workers requested permission from the government authorities a month in advance to organise an event in the low-lying part of the town which, as is well known, is half surrounded by hills inhabited by workers and port people and which is not easily accessible to those who do not live there because of the physical effort entailed or the cost if public transport is used. The town's social organisations, represented by the "Civic Assembly", supported the petition of the trade union organisations, emphasising that a venue should be determined for the event and that it should not be outside the low-lying part of Valparaíso. The communication states that the workers did not expect any difficulty in securing permission, especially since a public ceremony was to be organised by the regime in the centre of Valparaíso a few days before May Day on the occasion of a visit by General Augusto Pinochet. However, although the authorities granted permission for a public event to be organised by the workers, the only place they could hold it was the Alejo Barrios park on the Playa Ancha hill. The authorisation amounted in fact to a veiled refusal since it would have involved transport costs for the workers to get to the park. The workers consequently decided to organise the event in the Plaza del Pueblo, in the centre of the city. The demonstration was brutally repressed by armed police who were deployed by the Government on an exceptionally large scale: military vehicles were used to attack the crowd with tear-gas and water hoses. The workers' silent and peaceful march to the meeting point, as well as the demonstration itself, were repressed mainly by a hail of rubber bullets (which can be highly dangerous) which injured a large number of workers. Among the persons injured in this way were Mr. Sergio Aguirre Martínez, a member of the executive of the National Grouping of Workers and chairman of the Seamens' Confederation, and Mr. José Gaete, leader of the National Union of Pensioners (UNAP) of Valparaíso. According to the official government report, some 100 persons were arrested, including Alejandro Valenzuela, chairman of the Commercial Workers' Union of Valparaíso and a member of the executive of the regional CEPCH, together with trade unionists Luis Borg and Fanor Castillo. Police brutality reached its height when, in front of witnesses, officers began to torture a youth called González whom they had arrested, beating him about the testicles and stomach, causing almost instantaneous haemorrhage from the mouth. Trade union leaders tried in vain to persuade the police to restrain their violence but the latter replied that they were acting on orders from superiors.
10. 373. In a letter dated 24 June 1988 the CNT, after outlining the situation of the trade union movement in Chile, requests the ILO to appoint a direct contacts mission to examine the complaints presented against the Government of Chile.
11. 374. In a further communication, dated 25 August 1988, the CNT denounces the arbitrary dismissal of the former president of the Petroleum Workers' Federation and former adviser to the CNT, Mr. José Ruiz de Giorgio. The CNT states that Mr. de Giorgio's dismissal is a repressive measure motivated by his outstanding trade union work and for his having taken over the management of a regional body in favour of the "NO" vote in the forthcoming plebiscite.
12. 375. The Union of Workers of the "Dos en Uno" foodstore states that as from the last round of collective bargaining, in June 1986, the employers began to require workers to sign instruments described as "collective agreements" but which are drawn up by the company as it deems fit without the workers being able to discuss the content. This, the complainant states, is obviously a one-sided "agreement". The company writes to each worker, informing him of its intention to establish conditions of work different from those so far governed by the collective agreement and giving them a time-limit within which to go, individually, to the personnel office to sign a new contract. The company offers some fringe benefits (such as food baskets) as an incentive. So far nine such agreements have been signed, all with different dates of entry into force, affecting practically all the workers belonging to the union.
13. 376. The letter from the Union of Workers of the "Dos en Uno" foodstore adds that, on 18 May 1988, the union submitted a draft collective agreement but that the company responded by objecting to the participation in the bargaining of 410 out of the 415 members of the union. That is to say it recognised only the five union leaders as agents in the bargaining process. This meant that the statutory quorum could not be reached and, consequently, that this right could not be exercised. The complainant quotes section 294 of the Labour Code which provides that employers and workers may, by mutual agreement, begin direct discussions with a view to signing a collective agreement, as is provided in section 310(2) of the same Code which stipulates that a worker covered by a collective agreement that is still in force may not take part in other collective bargaining before the expiry of the current agreement. The communication adds that the employer (the "Dos en Uno" foodstore) is itself drawing up documents which it describes as collective labour agreements in order to prevent collective bargaining taking place in its establishment. The complainant concludes by stating that the facts are aggravated when the Labour Directorate and its departments go along with this type of manoeuvre, since the Labour Inspectorate of Santiago, in decision No. 111 of 6 June 1988, rejected the objection concerning legality submitted by the union, confining itself to ascertaining the existence of documents which have the appearance of collective agreements.
14. 377. In a subsequent communication, dated 22 June 1988, the Union of Workers of the "Dos en Uno" foodstore supplies further information in which it states that, since the number of agreements in the company is growing rapidly, they involve fewer workers each time: agreements that originally covered 180 workers, now cover only 120. Furthermore, the letter goes on to say that since the number of staff will shortly be increased to 1,500 workers, none of the groups covered by the "agreements" will be able to bargain collectively since they will not muster the minimum number required by section 295 of the Labour Code (10 per cent of the total number of workers in the enterprise). Thus not only is the right to bargain collectively being undermined but the exercise of this right is actually being completely obstructed. As an illustration of the labour policy followed by the company, the union explains in its letter that immediately after the lawful 48-day strike in 1986, the company dismissed over 200 unionised workers and replaced them by new staff.
15. 378. The letter concludes by requesting the intervention of administrative services coming under the Ministry of Labour and Social Welfare to investigate the type of practice that has given rise to the complaint, and the amendment of section 294 of the Labour Code by the addition of certain minimum requirements to safeguard collective bargaining.
16. 379. In a letter dated 30 May 1988, the College of Teachers of Chile denounces the fact that on May Day 1988, the workers of the town of Iquique were prohibited by a military decree issued by the Commander of the region, from holding any public celebration of International Labour Day. On this occasion the ban was especially significant for the workers of Iquique since the Government had selected their town as the centre for its own celebrations of what it termed "National Labour Day". The celebrations marking this event, which was attended by General Augusto Pinochet, were organised on a scale unprecedented in the area: vast numbers of people were transported from all over the country, an official publicity campaign was launched involving the mass media and public sites, and special police forces were brought in from Santiago and other major cities. The vast numbers of police and the enthusiasm of the Government contrasted with the ban on trade union celebrations which prevented the unions from expressing and disseminating the views and claims of the workers. The regional organisation of the National Grouping of Workers had, with the requisite notice, applied to the relevant authorities for permission to hold a public workers' demonstration to commemorate May Day but permission had been refused. Seeing this, the Regional Directorate of the College of Teachers of Iquique, as a gesture of solidarity, made their union premises available to the workers of Iquique and to the Regional Council of the National Grouping of Workers so that this important date could be commemorated, even if only privately.
17. 380. The letter states that following a religious ceremony conducted by the Bishop of Iquique in the local cathedral, workers from the congregation walked peacefully to the premises of the Regional College of Teachers. The walk was characterised by its peaceful nature, despite the intimidating effect of the overwhelming presence of police throughout the town. They walked in an orderly manner and almost in silence along the pavements, so that the traffic was not disturbed. During the walk the workers had to endure provocation and aggression by the police, resulting in dozens of arrests and injuries. In particular, the repression involved physical blows and the use of tear-gas bombs fired from shotguns. One of the persons thus injured was the managing director of the local radio station (Radio Iquique FM), Mr. Fernando Muñoz Marinkovic. About 100 men, women and children gathered in the union premises of the Regional College, including teachers and leaders of the Regional Grouping of Workers. The intention was to hold a private ceremony, without microphones and even with the doors and windows closed. At the point when Mr. Jorge Pavéz, general secretary of the College of Teachers of Chile, was speaking, the police forced their way into the building, firing tear-gas bombs directly on the people gathered there and then shutting the doors again. As a result, the workers and their families who were present panicked; fortunately, none lost their lives but dozens were injured. Those who were able to begin leaving the building were struck or arrested by the police and many of the workers were injured physically and psychologically. The damage to the union premises as a result of this police attack was considerable. On the day following these events the Regional Directorate of the College of Teachers, following legal advice from the Iquique Human Rights Committee, brought a criminal charge before the competent criminal court judge, on the following grounds: assault and violation of private property, injuries to third parties and destruction of other people's property. At the same time it lodged a civil claim for damages. Photographs are enclosed with the letter from the College of Teachers of Chile showing the state of the premises following the police action.
18. 381. In a letter dated 21 July 1988, sent both to the Ministry of Labour and Social Welfare and to the ILO, the National Confederation of Federations and Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH) denounces the discrimination prevailing in the sector, where workers are allowed to work up to 14 hours and more per day although the law lays down a maximum of 12 hours. The letter also states that an investigation of the situation has been requested in view of the pressure exerted by employers in the sector to prevent unionisation but that no reply has been received from the relevant bodies. Moreover, in the complainant's union, particularly in the big hotels, the permanent staff have been replaced by staff from outside the establishment provided by subcontractors, which is detrimental to the trade union organisations as is the manoeuvre of hiring workers on short-term contracts and, at the end of the contracts, drawing up new short-term contracts - a process that can be repeated indefinitely. In addition, the letter states, overt pressure is exerted by the employers when confronted with the process of collective bargaining, which makes the process inoperative. When employers in the sector cannot make use of the permanent staff, the latter are dismissed, sometimes without being paid the amounts due to them, which leads the complainant to affirm that in over 40 per cent of cases in the relevant sector the labour laws are not complied with, labour relations having given way to the "might is right" principle, the workers in this case being the weaker of course.
19. 382. The letter from the CTGACH contains a detailed list of enterprises in which the alleged infringements occur: the "Dos en Uno" Foodstore Limited, Conservas Los Reyes, Chocolates Costa, Rocofrut de Curico, the Vegetariano and Prosit restaurants, as well as other establishments in the city. The Confederation concludes by stating that three of its leaders have now been dismissed arbitrarily and that legal proceedings are under way in which the workers' cause has been upheld. It adds that complaints are being made daily to the labour inspection services concerning infringements of this type, with little result, and that the workers in small establishments in the capital and throughout the country have to face layoffs for months on end as a result of which they are forced to drop proceedings against their employers and to emigrate in search of work.
20. 383. In a letter dated 7 September 1988, the Federation of Unions of Petroleum and Allied Workers of Chile denounces the infringement of the freedom of association of former trade union leader, José Ruiz de Giorgio, who was chairman of the federation until the end of 1987, during which time he was persecuted on the grounds of his trade union activities. Of his own free will Ruiz de Giorgio gave up his trade union work at the end of 1987 to return to his usual work as captain in the navigating enterprise ENAP-Magallanes. The letter adds that a few weeks ago, when he was speaking in public about a book on labour matters that had come out, he was consulted by the journalist interviewing him on the dismissal of 600 workers in the Magallanes area, about 100 of whom were entitled to a retirement pension. Mr. Ruiz de Giorgio stated that he did not understand the situation since the enterprise ENAP-Magallanes which said that it was overstaffed was, at the same time, taking on a large number of relatives of the firm's senior executives. He also denounced the fact that for the first time an international contract had been awarded without tenders having been invited, thereby contravening national regulations, and that he was going to request the competent authorities to make an official investigation of the matter. As a result of these statements, he received a written warning following which, on 23 August 1988, he was dismissed without further explanation. The management of the enterprise later explained that he had been dismissed because of the statements he had made; the enterprise was thus passing judgement on him, taking on powers that belong only to the courts.
21. 384. In a letter of 8 September 1988 the WCL denounces the fact that since 1973 an anti-social and anti-union policy has been followed in Chile, entailing severe repression of lawful activities by the workers in defence of their interests, such activities being interpreted by the authorities as movements aimed at destabilising the Government. Trade union leaders such as Manuel Bustos, Arturo Martínez and Moisés Labraña are accused of being agitators and of fomenting illegal strikes and subversive acts, on which grounds they are sentenced. On 21 March 1988 the Second Chamber of the Santiago Court of Appeal, before which these persons had lodged an appeal, overturned the verdict of the court of the first instance. Bustos and Martínez have once again been given a 541-day sentence and Labraña's sentence is for over 200 days' imprisonment. It is clear, the letter states, that the Government wishes at all costs to stifle any trade union activity aiming to establish social justice and freedom of association in Chile and to isolate workers and the leaders of trade unions which are struggling for the welfare of the working masses. The letter concludes by declaring that the sentences are unjust and should be rescinded. The Government should allow trade unionists to go about their trade union activities freely.

C. The Government's replies 385. In a letter dated 6 June 1988 the Government states that it has decided to remove 25 names from the list of persons who must obtain prior permission to enter the country; trade unionists Agustín Muñoz and Juan Vargas Puebla are among the 25.

1. 386. In a letter dated 28 July 1988, concerning the request by the CNT and the ICFTU for a direct contacts mission to be sent to Chile, the Government states that a study of this request reveals that there are no specific factors which constitute a serious situation as regards trade unionism in Chile. After making general references to alleged infringements of freedom of association, the complainants embark on political considerations which prejudge the legality of the current electoral plebiscite in stating that: "It is feared that the Government, availing itself of its wide discretionary powers, is stepping up and multiplying its activities to repress and restrict human, civil, political and trade union rights". All this, the Government states, does not stand up to objective judgement and shows the ambiguity of the statements that are supposed to support the request for a direct contacts mission. The Government expresses its surprise at this request since the procedure in question is a special one applicable to countries which have repeatedly refused to co-operate with the ILO to resolve cases or to provide information requested of them to shed light on such cases; this in no way corresponds to the attitude of Chile, whose constant co-operation has been appreciated and recognised by the Committee. The Government of Chile wishes to continue its unfailing co-operation. Consequently, the letter states, the request from the National Grouping of Workers has no legal foundation and lacks objectivity. Moreover, the direct contacts procedure, in which an ILO representative is sent to the country in question, must follow the procedure established by the Office itself for the examination of complaints "with a view to seeking a solution to the difficulties encountered, either during the examination of the case or at the stage of the action to be taken on the recommendations of the Governing Body" and in the situation under consideration such difficulties have not been encountered either during the examination of the case or as regards the action to be taken on the recommendations of the Governing Body.
2. 387. The Government states further that the procedure also provides that a direct contacts mission "can only be established at the invitation of the governments concerned or at least with their consent" and that the Government of Chile, aware of the ILO's budgetary difficulties, had, on the occasion of the visit of a senior ILO official who is an expert in international labour standards to a neighbouring country, suggested that he visit Chile in order to acquaint himself on the spot with the national trade union situation, offering every guarantee for the widest range of contacts, not only with the authorities, but also with representatives of trade unions. Regrettably, this suggestion could not be carried out and there is no reason, months later, to carry out the request of the CNT, since it is clearly motivated by political considerations aiming to involve the ILO and use its image in an essentially internal political process in which Chile will define its democratic institutional nature providing guarantees for all of its citizens.
3. 388. In a communication dated 24 August 1988, the Government refers to the situation of trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, stating that on 17 August the Second Chamber of the Supreme Court of Justice unanimously upheld the appeal lodged by the Ministry of the Interior against these three persons for serious disturbance of the public order provoked by their call for a nation-wide stoppage of work on 7 October 1987; the stoppage of activities (including essential services) and its inevitable result of violence and terrorist acts provoked by the union leaders, is defined in the State Security Act which has been in force since 1958 and has been applied by every Government of the country since that year. The decision of the Supreme Court cannot therefore be considered a violation of the legitimate right to strike enshrined in international labour legislation and fully incorporated in Chilean legislation. This was not a case of activities related to freedom of association, but of acts aimed at disturbing the public order and damaging public and private property.
4. 389. The communication states further that it should be noted that this court decision was the outcome of a trial that had lasted nearly 11 months and had been considerably prolonged by the appeals lodged and the delaying tactics employed by the defence council of the accused. It was therefore not based on political considerations, although an attempt was made to find a political motivation citing the fact that these persons had been appointed to the executive of the recently reconstituted Single Central Organisation of Workers. Such a political consideration is not at all in keeping with the independence, traditional conduct and spirit of the national judicial power. The judges of the Second Chamber of the Supreme Court merely applied the legislation in force and imposed the penalties laid down for an infringement of legal standards. It should be recalled that the above-mentioned union leaders had been sentenced in the first instance to various terms of imprisonment; that subsequently, the court of the second instance (the Court of Appeal) had given a ruling of diminished responsibility and that, following the appeals procedure, the Supreme Court had decided to uphold the decision of the court of the first instance, but with the sentences substantially reduced: the term of deprivation of freedom (imprisonment) having been replaced by restriction of freedom, that is, internal exile.
5. 390. The communication concludes that it should be pointed out once again that this was essentially a case of objective application of the legal standards in force since 1958. The Government had not resorted to administrative procedures, as it is entitled to do during a state of emergency, but, on the contrary, had acted in accordance with its normal standards of conduct, and had turned to the courts (whose decision in the second instance had even been favourable to the union leaders) in order to obtain a verdict on acts contrary to the legal order and the national interest of maintaining internal order and rejecting violence. The rule of law had thus been guaranteed and the accused had been given every opportunity of a fair trial and adequate defence. It must be emphasised that there had been no violation of the right to strike in this case, since this right, which is guaranteed by national legislation, bears no relation to the acts which the courts of law had condemned. Legal strikes follow procedures which are clearly laid down in the law and which had not been complied with in this case by those who had called for a stoppage of activities and the wave of infringements consequently unleashed. No civilised society could condone, on the pretext of a distorted application of the principles of freedom of association, explicit calls for criminal acts endangering the life and property of the public, provoking anarchy and bringing essential public services to a standstill.
6. 391. In a detailed communication dated 20 September 1988, the Government sends additional information on the legal situation of trade unionists Manuel Bustos, Arturo Martínez and Moisés Labraña, indicating that Mr. Bustos was indeed sentenced to 541 days' internal exile to the town of Parral, Mr. Martínez to the same term in the town of Chañaral and Mr. Labraña to a 61-day suspended sentence of imprisonment. Section 35 of the Penal Code provides that "internal exile is transfer of the accused to an inhabited location within the territory of the Republic, being prohibited to leave it but remaining free". This means that the sentence is not one of deprivation of freedom, such as a term of imprisonment, but only one of restriction of freedom of movement to the town of exile. The exiled person may live with his family, work, hold meetings and do anything except leave the town where the sentence is being served. This sentence is served in freedom, as the person is not imprisoned. A suspended sentence, under section 3 of Act No. 18,216 (Diario Oficial of 14 May 1983), means that the sentence is not carried out in special establishments under police custody. The sentence is not one of deprivation of freedom; a person thus sentenced remains under constant police surveillance by periodically signing a register. Despite the verdict of guilty, the defence counsel of the accused lodged two appeals against the sentence of the Supreme Court. One of the appeals was for clarification and the other for reversal, aimed at obtaining a reconsideration of the decision of 17 August 1988. However, the Second Chamber of the Supreme Court, by unanimous vote of its five members, rejected the two appeals in a ruling of 30 August 1988, and thus upheld the verdict of guilty handed down on 17 August 1988. The Government encloses a copy of the decision of the Supreme Court and adds that it has no further information to give on this aspect of the case.
7. 392. In its communication of 20 September 1988 the Government, as regards the ICFTU communication concerning the arrest and alleged ill-treatment of Mr. Freddy Nuñez, states that on Friday, 3 June 1988, Mr. Héctor Collado, who lives in a rented house at the address San Vicente Street No. 9157, informed the police that, as a result of a landslide causing the tiles covering the terrace to cave in, a secret underground hiding place under the terrace had been exposed. The house which he rents is the property of Mr. Freddy Nuñez. Upon visiting the house, the police discovered 68 containers of mass-produced explosive anti-personnel grenades in the above-mentioned underground hiding place. The tenant, Mr. Héctor Collado, and the owner, Mr. Freddy Nuñez, were arrested that same day, Friday 3 June, by order of the second military prosecutor, in order to carry out an investigation and make a decision as to their responsibility. Under Act No. 17,798, approved in 1972, respecting weapon and explosives control, it is the special courts which are competent to examine offences and infringements of the said Act. On Thursday, 9 June 1988, after conducting interrogations, the prosecutor decided to release Mr. Héctor Collado and Mr. Freddy Nuñez on bail for 60 days; that is, they were prohibited from leaving the country for that period. However, the communication goes on, this did not turn out to be the case for Mr. Freddy Nuñez, as the prosecutor decided to place him at the disposal of the ad hoc prosecutor investigating an attempt to assassinate the President of the Republic, the kidnapping of a lieutenant-colonel in the army and the smuggling of weapons into the country for subversive purposes, hiding them in underground hiding places located in homes in various districts of Santiago similar to that discovered in the house belonging to Mr. Nuñez. The ad hoc prosecutor then interrogated Mr. Nuñez in order to elucidate a presumption that the above-mentioned hiding place had been used to hide army Lieutenant-Colonel Carlos Carreño, kidnapped the year before by a terrorist commando, smuggled out of the country and subsequently freed in Brazil. On 14 June 1988, the ad hoc prosecutor, on the basis of the interrogations of Mr. Freddy Nuñez, ordered the arrest of a couple who had rented Nuñez's house before the present tenant and who were suspected of having taken part in building the secret hiding place where the explosive devices had been found, and on 15 June 1988 the ad hoc prosecutor ordered Mr. Freddy Nuñez's unconditional release, after having interrogated him and ascertained that he had not been involved in building the secret hiding place or in placing the explosive devices found in the house belonging to him.
8. 393. The communication contains some observations on this aspect of the case: the motive for the arrest of Mr. Freddy Nuñez and Hector Collado was the discovery of the secret underground hiding place containing explosive devices, in the context of an investigation under way to discover the destination of a large amount of weapons smuggled into the country by a terrorist group. Therefore, it bears no relation to freedom of association or labour rights, since the case comes under criminal jurisdiction, and has nothing to do with rights in the labour field. After investigations had been carried out, Mr. Nuñez was released unconditionally on 15 June 1988; however, the complaint of the ICFTU was made on 16 June and received by the ILO on 17 June. This discrepancy in the dates shows that Mr. Nuñez had already been freed when the ICFTU complained of the physical ill-treatment and danger to his life to which he had been subjected. In press statements, Mr. Nuñez himself said that he was not physically ill-treated and his life was never in danger during his detention. At all events, both Mr. Nuñez and Mr. Collado may take any legal action they deem appropriate to defend their rights if they consider that they have been infringed. Lastly, the communication states that Mr. Freddy Nuñez continues to carry out his activities normally and in full freedom.
9. 394. The Government's communication refers to the aspect of the case mentioned by the ICFTU in its communication dated 6 July 1988, concerning the arrest of trade unionist Jorge Millán during a march organised by the CNT; in this regard, the Government states that on Thursday 30 June 1988, a female contingent of a de facto organisation running counter to the law in force, whose representativity is not known, since it does not have legal personality, held a march without previous authorisation in the city centre with the aim of achieving a massive gathering of the public in the neighbourhood of the Plaza los Héroes, obstructing traffic in the streets; however, young students of a higher educational establishment, the Instituto Profesional de Santiago, and other minors, began raising barricades in the street, throwing stones at cars and lighting bonfires, making it necessary to deviate traffic into side streets for over one hour and to close the entrances to the "Los Héroes" and "Moneda" stations of the city subway. This public disturbance called for the intervention of the uniformed police, who detained the persons involved. One of those detained was Mr. Jorge Millán, who was taken to the police precinct of the third police station, where he was detained for the statutory period until a decision had been taken on the legal action to be brought against him. On 5 July 1988, Mr. Jorge Millán was released by the police, having completed the statutory period of detention, since the authorities had decided not to instigate legal proceedings against him. All of the other persons detained on 30 June in connection with the same events were released. In press statements, Mr. Millán said that he had been treated well during his detention and that he was returning to his work in a laboratory. The Government would like to draw attention to the fact that the complaint of the ICFTU was presented to the ILO on 6 July 1988, after Mr. Millán and all the other persons detained had been released.
10. 395. Another aspect of the case referred to in the Government's communication concerns the situation of Mr. Juan Pablo Cárdenas, mentioned by the ICFTU in its communication dated 27 May 1988. The Government states that on 25 May 1988 at approximately 10 p.m., as Mr. Juan Pablo Cárdenas was about to enter the "Centro Abierto Manuel Rodríguez" of the Chilean police, where he was serving a night detention sentence imposed by a court of the Republic, he was detained by police officers of the investigation service at the order of the naval prosecutor of Valparaíso. The reason for his detention by the naval prosecutor was his presumed involvement in committing the offence of insulting the armed forces, as defined in section 284 of the Code of Military Justice. This offence occurred with the publication of an article in the weekly magazine run by Mr. Cárdenas, edited and signed by Mr. Iván Badilla. Both Mr. Juan Pablo Cárdenas and Mr. Iván Badilla were placed at the disposal of the court, which ordered their arrest and imprisonment in the Valparaíso public prison. Once the statutory period of detention had expired, the naval prosecutor released Mr. Juan Pablo Cárdenas on 30 May 1988. As regards Mr. Iván Badilla, the editor of the article considered to have insulted the armed forces, the prosecutor released him on bail on 23 June 1988. Section 284 of the Code of Military Justice provides that "persons guilty of committing an outrage against the national flag, seal or banner shall be sentenced to prison ... and anyone who, verbally or in writing, insults or offends army institutions, units, divisions or forces, or certain classes or corps thereof, shall be sentenced to prison ... or a fine ...". Both Mr. Cárdenas and Mr. Badilla were provided with legal advice by expert lawyers during these proceedings.
11. 396. The Government makes the following observations in its communication: neither Mr. Juan Pablo Cárdenas nor Mr. Iván Badilla are engaged in trade union activities and the reasons for their arrest have nothing to do with trade union activities. Moreover, it is not true that Mr. Juan Pablo Cárdenas was violently abducted by heavily armed unidentified persons in civilian clothing and that his whereabouts were not known. He had been arrested, states the Government, on a court order by investigating police officers, who had identified themselves and behaved non-violently. He had been taken to the central police headquarters, a public, centrally located and well known place, and had been transferred the same day to the nearby port of Valparaíso to be placed at the disposal of the court which had ordered his arrest; it is not true that special armed commandos arbitrarily arrested Mr. Iván Badilla. According to the Government, his arrest was made at the order of a court investigating a presumed offence and his involvement in it. Those who had carried out the order for his arrest were officers of the investigating police, who had escorted him to central headquarters and later taken him to the port of Valparaéso to place him at the disposal of the court. At no time were the lives or physical integrity of Mr. Juan Pablo Cárdenas and Iván Badilla in danger. Lastly, the Government has no further information to supply on this matter.
12. 397. The Government's communication refers to the aspect of the case mentioned by the ICFTU and the Democratic Central Organisation of Workers (CDT) in communications of April 1988 which had remained pending at the last examination of this case (May-June 1988). The Government states that on Wednesday, 6 April 1988, a minority group of workers employed in the railway enterprise (Empresa de Ferrocarriles), specifically 300 workers employed on the southern railways, held a "warning strike" in which they physically occupied the railway junction of the southbound railway, 1 kilometre from the central station, blocking the passage of passenger and freight trains. The objective of the strike, which involved physical occupation of the railway and a 12-hour interruption of railway traffic, was to make the following demands: the resignation of the director of the enterprise, Mr. Roberto Darrigrandi Chadwick; to put a stop to the system of private contractors in the railway enterprise; and that the Minister of Transport and Telecommunications received the striking workers. The Ministry of Transport and Telecommunications considered that pressure and a coercive attitude were unacceptable, especially when the illegal stoppage was only aimed at creating political problems for the Government on the eve of the national referendum. In fact, collective bargaining had been carried out and all of the economic or social demands had been met by the enterprise. Therefore this illegal strike, which was political in nature, cannot be viewed as the outcome of negotiations in the field of labour relations.
13. 398. The communication adds that, in view of the fact that this was an illegal work stoppage, which gave rise to problems and caused economic damage to the enterprise, the director of the enterprise, in resolutions dated 11, 15 and 18 April 1988, by virtue of the powers vested in him by the law, dismissed 101 workers who had taken part in the stoppage. The illegal stoppage ended on 29 April 1988 and work was gradually resumed as from 30 April 1988. This illegal stoppage resulted in a loss of income for the railway enterprise amounting to 350 million pesos in the form of freight and passengers not transported during the 18-day strike. By 1 August 1988, the enterprise had reinstated 39 of the dismissed workers, after investigating their record. On 18 May 1988, the dismissed workers brought a claim against the enterprise before the Fifth Labour Court of Santiago. The workers were counselled by a lawyer who was a specialist in the labour field. The court issued a first order for conciliation between the parties on 22 July 1988. However, the representative of the enterprise who was present was not empowered to respond to the workers' demands, and no agreement was reached. The court again ordered the director of the enterprise to appear for conciliation on 16 August 1988. However, this attempt at conciliation was also postponed at the request of the enterprise, as the board of directors of the railway enterprise was being set up and it was the latter which was competent to conciliate with the claimants. Lastly, the Government is surprised that it is the CDT which presents accusations of violation of freedom of association, since that organisation expelled its own secretary-general, Mr. Elías Madariaga, for having been a member of the Chilean delegation to the ILO, which does no credit to it as an example of observance of freedom of association. The Government has no other information to provide on this case.
14. 399. As regards the allegation presented by the Workers' Trade Union No. 1 of the Consorcio Periodístico de Chile SA (COPESA) which had not been concluded at the last examination of this case, the Government states in its communication that a visit of inspection had been carried out in this enterprise in order to verify the allegations and take measures to correct any irregularities, and a review had been made of the labour and social security regulations governing its employees. It was thus ascertained that the collective agreement concluded between the parties and currently in force is applied in full, including the clause providing for an adjustment of pay due on 31 March 1988, which was paid in accordance with the terms of the agreement. As regards the dismissals referred to in the complaint, they had been carried out in accordance with section 155 f)of the Labour Code, and the persons affected had been paid all of the benefits to which they were entitled. Since the employment relationship had been terminated, there was nothing for the labour inspectorate to do. The investigation revealed that the employees had not been paid for overtime performed in the past six months, and therefore the employer had been instructed to redress this situation. This had been done by the employer on 25 May 1988, when he paid 6,503,017 pesos to the workers concerned. It was also ascertained that contracts of employment had been made in writing and contained the stipulations required by the law and had been duly renewed. Lastly, all of the remuneration had been duly paid in cash to the employees, with a receipt signed by the latter, and there had been no miscalculations or undue deductions.
15. 400. The Government's communication also refers to the complaint presented by the National Confederation of Federations and Trade Unions of Textile and Allied Workers (CONTEXTIL) concerning the problems facing workers of the trade union of the Curtiembre Interamericana SA in concluding a collective labour agreement. The Government states that arrangements had been made for a labour inspector to visit the Curtiembre Interamericana SA enterprise with a view to verifying the allegations. During his visit, the inspector ascertained that a group of workers were engaged in collective bargaining and that they had been holding a legal strike since 28 March. In the course of collective bargaining, five workers resigned from the enterprise of their own accord as from 31 March 1988 and signed their resignations on 13 April 1988 in the presence of a notary public. The workers who had held the legal strike resumed normal work on 24 May 1988 at 8 a.m. Lastly, as regards the alleged threats and persecution of workers involved in collective bargaining, the Government states that no complaints or charges on such grounds against the enterprise had been received by the municipal labour inspectorate.
16. 401. The Government's communication refers to the complaint presented on 14 June 1988 by the National Grouping of Workers (CNT), which it considers to be a de facto organisation whose representativity is not known, since it has no intention of acquiring legal personality as it is in opposition to the law. The communication of the CNT denounces the incidents which occurred in Valparaéso on 1 May 1988. The Government states in this regard that on 1 May 1988, about 300 persons seriously disrupted the public order in Pedro Montt Avenue from Plaza 11 de septiembre to Plaza Victoria in Valparaíso by interrupting pedestrian and automobile traffic, throwing leaflets on the public thoroughfare and stones and molotov cocktails at police officers and vehicles. These demonstrations and riots began around noon, following a religious service held in the church of Los Sagrados Corazones. Uniformed police proceeded to restore public order with appropriate personnel and methods; this was only achieved at about 2 p.m.
17. 402. As a result of these events, 94 persons were arrested for public disturbances and were placed at the disposal of the Third Local Police Court of Valparaéso, which heard cases Nos. 79,154 and 79,155 and imposed fines and warnings. These persons were released on the same day at the same police station. None of those detained and placed at the disposal of the local police court suffered injuries or contusions of any kind, as was stated in the records, which they themselves signed. The police stations have no record of any injuries inflicted on Mr. Sergio Aguirre Martínez and Mr. José Gaete referred to in the complaint. After a thorough investigation, it was ascertained that Mr. Luis Borg and Mr. Fanor Castillo, referred to by the complainant, were not recorded in the police registers as having been arrested in connection with these incidents. The only person who was arrested for rioting was Mr. Florencio Valenzuela Cortés, who was placed at the disposal of the Third Local Police Court of Valparaíso, together with the other detainees as explained above. The Government has no further information to provide on this matter.
18. 403. The Government's communication also refers to the complaint presented by the College of Teachers of Chile and by the CNT in communications dated 30 May and 24 June 1988 respectively, concerning the events which occurred on 1 May 1988 in the town of Iquique. It states that on 1 May 1988 an event commemorating "Labour Day" was being held in the "Casa del Deportista" in the port of Iquique, in the presence of the President of the Republic, the Minister of Labour, diplomatic officials and a large number of workers. Parallel to this, a religious service organised by the CNT was being held in the cathedral of Iquique in Obispo Labbé street, 250 metres from the "Casa del Deportista". The mass ended at 12.30 p.m. and a number of persons gathered outside the church, yelling and shouting slogans against the Government and the armed forces. This group organised themselves to hold a march, clearly intending to pass in front of the "Casa del Deportista", towards the College of Teachers. Faced with this situation, a group of uniformed police warned them not to pass in front of the "Casa del Deportista" in order to avoid a confrontation with government supporters, but to no avail, so that they were obliged to use chemical deterrents in order to disperse the column and check its advance, compelling the marchers to turn into another street. The latter reorganised themselves in four groups and converged from different directions in front of the premises of the College of Teachers, in the middle of the thoroughfare, five blocks from the "Casa del Deportista". About 500 persons gathered there. The police again warned them to disperse, since they were obstructing pedestrian and automobile traffic, but the warning went unheeded, and acts of verbal and physical aggression were committed against police officers, and stones and other contusive objects were thrown. The officer in command was knocked down and beaten on the ground, so that chemical deterrents had to be used again to disperse the crowd. About 300 persons entered the premises of the College of Teachers, from which they shouted insults and threw stones at police officers. During the incidents, tear-gas spread inside the building, so that the occupants had to break the window panes for ventilation and to avoid the ill effects of the gas; these window panes fell outside the building, as was attested by the local officer in command. As a result of the violence of the incidents, 21 persons were injured, including five police officers. The incident was reported to the military prosecutor of Iquique in police report No. 12 of 1 May 1988 of the First Police Commissariat of Iquique, citing assault of policemen on duty. A total of 61 persons who had been involved in the riots were arrested and placed at the disposal of the local police court of Iquique by police report No. 3479 dated 1 May 1988. Of these 61 persons arrested for public disturbances, only three were identified as being teachers. It must be pointed out that the only mission of the police was to maintain public order and prevent excesses, and the Government categorically denies that they entered the premises of the College of Teachers in order to cause damage. It should be noted that on 22 April 1988, the regional commander of Tarapacà authorised the organisation called "regional grouping of workers" to hold a meeting marking Labour Day in the Tadeo Haenke sports complex between 10 a.m. and 12 a.m., after which they were to refrain from holding marches or gatherings and would be held responsible for any damage to public or private property which might be caused by the participants either during or after the event. The College of Teachers of Iquique brought a criminal suit against the police for "damage, injuries and breaking and entering" before the Second Law Court of Iquique, under case No. 48,720-2. However, on 6 May, this court declared itself not competent and referred the suit to the military prosecutor, who is conducting it under case No. 140-88. The military prosecutor is also conducting case No. 139-88, on "assault of police officers on duty". Both cases are now at the indictment stage, and a large number of the persons involved in the incidents have made statements. It is possible that both suits will be merged into one, which would be conducted by the military prosecutor.
19. 404. As regards the Managing Director of Radio Iquique FM, Mr. Fernando Muñoz Marinkovic, alleged to have been assaulted and to have sustained fractures in one arm as a result, the Iquique police headquarters reports that this person was admitted to the emergency room of Iquique Hospital at 12. 25 p.m. on 1 May, according to medical record No. 14,886, with the following diagnosis: "observed fracture left elbow, medium severity". Verification of police registers shows that no arrest was made or charges brought in connection with this person. In an interview with Mr. Muñoz Marinkovic, the latter stated that he had sustained a fissure in his left elbow as a result of a fall which occurred as he was making a news report of the May Day incidents. In suit No. 140-88, which is being conducted by the military prosecutor, police are accused of having damaged the building, pictures and chairs belonging to the College of Teachers. In this regard, teachers Italo Maniello, Javier Morales S., Juan Lima M., and Alicia García T., all of whom hold posts on the regional executive of the College of Teachers of Iquique, when questioned as to the cause of the damage, stated that those who had caused it "were elements participating in the event held by the College of Teachers, for the purpose of blaming the violence unleashed on the police". The persons arrested were released after being summoned to the local police court. It has already been explained to the Committee on Freedom of Association that in proceedings concerning public disturbances, those found guilty are fined small sums by the local police courts. Lastly, the Government has no further information to provide on this case.
20. 405. The Government's communication also refers to the complaint presented in communications dated 5 April, 4 May and 21 July 1988 by the National Confederation of Federations and Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH) concerning anti-trade union pressure allegedly brought to bear by employers in the sector. The Government states that the Ministry of Labour has ordered an investigation by labour inspectors with a view to verifying compliance with labour legislation in this sector and penalising any infringements found to have occurred. The following enterprises were inspected:
    • - the Savory-Montt and Company Limited Restaurant;
    • - the Bali-Hai Restaurant;
    • - the Vegetariano Restaurant;
    • - the Carrera Hotel;
    • - the Sheraton Hotel;
    • - the Copasin Foodstore;
    • - the "Dos en Uno" Foodstore;
    • - Marriot Chile SA;
    • - the Evercrisp Food Products Company.
21. 406. The Government's communication on this aspect of the case is fairly detailed and refers, in particular, to registration of attendance, employment contracts, bonuses, social security, dismissals and the trade union situation in these establishments; in the latter connection, the Government states that, as regards allegations of dissolution of trade unions, as the Committee has been aware since 1979, in accordance with the amendments introduced in labour legislation, dissolution of a trade union, federation or confederation may be declared only by judgement of the law courts, in this case, of a judge of the Court of Appeal in whose jurisdiction the trade union is located. Thus, an end was put to the arbitrary practices which had prevailed in the country for over 50 years, and which had consisted in the administrative authorities being able to create and dissolve trade unions at their own discretion and according to their whim. The Government provides the following information on the trade union situation in this sector:
    • a) Workers' Trade Union of the Violeta Peebles de Vera Company Limited Granted legal personality by Decree No. 62 of 13 January 1972 of the Ministry of Labour and Social Welfare. Its last trade union executive was elected on 6 July 1981. It has temporarily suspended its activities and has not been dissolved by a court.
    • b) Workers' Trade Union of the Claridge Hotel Limited Legal personality granted by Decree No. 12 of 11 January 1961 of the Ministry of Labour and Social Welfare. Its dissolution was ordered by a decision of 31 January 1985 of the Court of Appeal of Santiago on the grounds, provided for by law, that for six months the number of members had fallen below that required for its constitution.
    • c) Workers' Trade Union No. 1 of the Waldorff S.A. Restaurant and Rotisserie. This trade union was granted legal personality by Decree No. 509 of 27 May 1971 of the Ministry of Labour and Social Welfare. It has temporarily supended its activities; its last executive was elected on 19 November 1982 and it has not been dissolved by a court decision.
    • d) Workers' Trade Union No. 1 of Somontur Company Limited, Grand Hotel Isabel Riquelme. Legal personality was granted by Decree No. 1385 of 31 October 1972 of the Ministry of Labour and Social Welfare. By court decision of 28 November 1984, the Court of Appeal of Chillán ordered its dissolution on the grounds, established by law, that for six months the number of members had fallen below that required for its constitution.
    • e) Workers' Trade Union of the CONIN Babyfood Corporation. Legal personality granted on 21 January 1980 upon depositing its founding documents and by-laws with the Provincial Labour Inspectorate of Santiago. The trade union is now operational and active; its last executive was elected on 12 June 1986.
    • f) Workers' Trade Union of the Prosit Soda Fountain Limited. Legal personality was granted by Decree No. 560 of 14 April 1972 of the Ministry of Labour and Social Welfare. Dissolution was ordered by the Court of Appeal of Santiago by a decision issued on 11 October 1982, on the grounds that for six months the number of members had fallen below that required for its constitution.
    • g) Workers' Trade Union No. 1 of the Autogrill Company Limited Restaurant. Legal personality was granted by Decree No. 473 of 4 April 1972 of the Ministry of Labour and Social Welfare. It has temporarily suspended its activities; its last executive was elected on 16 December 1982; it has not been dissolved by a court decision.
    • h) Workers' Trade Union of the Rincón Alemán Company. Legal personality was granted on 30 June 1986 upon depositing its founding documents and by-laws with the Provincial Labour Inspectorate of Bío-Bío. The latter made observations concerning the by-laws and granted the trade union the statutory period of 60 days to correct shortcomings; when this period expired, the organisation had neither complied nor appealed to the Labour Court; its legal status thus lapsed merely by operation of the law.
22. 407. The communication also refers to the dismissals of trade union leaders in this sector: Luis Benítez Galaz, Angel Catalán, Arsenio Angulo and Juan Montalbán. The Government states that, in the case of Luis Benítez, on 12 November 1984 his employer, the Club de la Unión in Santiago, dismissed the leader of the Inter-enterprise Union of Workers in the Culinary Arts, Mr. Luis Benítez Galaz, on the grounds established by law, of serious failure to discharge the obligations laid down in his contract. Following a complaint by Mr. Benítez Galaz, on 16 November 1984 the Provincial Labour Inspectorate of Santiago ordered his reinstatement. When the enterprise refused to do this, an administrative penalty was imposed. Mr. Benítez subsequently lodged a claim with the 24th Civil Court of Santiago to declare his dismissal null and void on the ground of trade union immunity. On 31 October 1985, the court handed down its decision to uphold the claim and order that his employment contract be restored and that he be paid remuneration for the period in which he was dismissed, failing which the employer would be ordered to pay the compensation due in respect of his trade union immunity and seniority. This decision was appealed against by the employer, but was upheld by the Court of Appeal and the Supreme Court; the latter ruled that there had been no error or miscarriage of justice when the decision had been handed down. On 26 August 1986, Mr. Benítez lodged a petition for compliance with the same court against the Club de la Unión; the proceedings in the case are still under way. As regards the dismissal of trade union leader Mr. Angel Catalán M., the Government states that on 5 May 1986 the latter lodged a complaint with the Municipal Labour Inspectorate of Santiago Sur on the grounds that the COPASIN enterprise where he was employed had not given him any work since 26 April 1986. The Labour Inspectorate ordered the employer to appear on 15 May 1986 for conciliation between the parties. At the meeting, the employer's representative stated that Mr. Catalán had, in a written minute signed in the presence of a notary public, requested unpaid leave from 1 December 1985 to 31 May 1987 and had requested advance payment of the seniority pay to which he was entitled. The representative added that the enterprise had paid him the sum of 149,929 pesos, i.e. half of the above-mentioned benefit, for the period from 1 November 1978 to 3 November 1987. The complainant, Mr. Catalán, stated that until 26 March 1986 he had held the office of secretary-general of the National Confederation of Workers in the Food, Hotel and Allied Trades, and that he had been elected as from that date treasurer of the trade union of the enterprise, which was the reason why he had requested reinstatement, refused by the enterprise. The Inspector called upon the parties to come to an agreement, which, however, was not reached. Mr. Catalán was therefore instructed to lodge a claim against the enterprise with the ordinary law courts. As regards the dismissal of the trade union leader of this enterprise, Mr. Arsenio Angulo, the Government states that Mr. Angulo himself reported that his situation had been settled in 1984 when he signed an agreement with the enterprise under which his contract was terminated in the most complete and reciprocal manner and his employer paid him 60,000 pesos compensation. As regards the situation of the head of the Inter-enterprise Union of the Restaurant and Hotel Trade, Mr. Juan Montalbán R., the Government states that on 18 March 1988 the Provincial Labour Court of Santiago received a complaint from him alleging that he had been dismissed without justification despite is trade union immunity. On 6 April 1988 a labour inspector visited the home of his employer in order to request her to show the legal authorisation empowering her to dismiss the complainant or, in the absence of such authorisation, to reinstate him immediately. However, this did not take place, since the employer was not at home. She was therefore summoned to appear at the Provincial Labour Inspectorate on 7 April 1988. It was a representative who attended the summons, having been given power of attorney to represent the impugned employer. The employer's proxy stated that Mr. Montalbán had not been dismissed and could therefore return to his job. On the same occasion, she presented a request that the leader be stripped of his immunity, submitted to the Labour Court on 21 March 1988. On 8 April 1988, Mr. Montalbán appeared at the Provincial Labour Inspectorate offices and was handed the decision to the effect that he was to be reinstated in his job. On 12 April 1988 Mr. Montalbán once again appeared at the Labour Inspectorate and stated that he had been assaulted by his employer's son and thrown out of the establishment. He had reported these events to the local police station. He also pointed out that he had required medical attention in the emergency room as a result of the injuries he had sustained. In view of these events, the impugned employee was summoned to appear on 14 April 1988 at a hearing which Mr. Montalbán was to attend as well, as he was told verbally at the time. However, only the employer appeared on 14 April 1988. In view of the fact that the worker concerned neither attended the hearing nor persisted in his complaint, no further action was taken, on the assumption that he had taken his case to the law courts, which are the only courts competent to try and give judgement on the presumed offence of assault and battery.
23. 408. The Government's communication also refers to the situation of the workers employed in the "Dos en Uno" Foodstore Limited, stating that an inspection carried out by a labour inspector had confirmed that a lawful strike had been held between 5 May 1986 and 23 June 1986 in the enterprise in the context of collective bargaining. Staff reductions carried out in this enterprise bore no relation to the collective bargaining process or to the lawful strike. The workers affected were paid the statutory compensation due.
24. 409. In a further communication dated 31 October 1988, the Government refers to the dismissal of the trade unionist José Ruiz De Giorgio, stating that he was dismissed from the National Petroleum Company (ENAP) by virtue of section 155(f)of the Labour Code of 1987. This section states that the employment contract shall be terminated in the following cases:
    • f) Written renunciation by one of the parties which must be given to the other with at least 30 days' notice, with a copy to the respective Labour Inspectorate. Nevertheless, this prior notice is not necessary when the employer pays the worker compensation in cash equivalent to his last monthly wage.
25. 410. The Government states that the National Petroleum Company indicated that, rather than giving up Mr. De Giorgio's employment contract, it had exercised the right - which cannot be waived - provided for by law to the parties so as to enable the employment contract to be terminated at the wish of only one side without it being necessary to give justification or any further reasons for its exercise. On 27 August 1988, Mr. De Giorgio brought court proceedings against the National Petroleum Company with a view to obtaining the payment of the compensation and benefits due to the Company's actions, claiming payment of compensation for termination of contract and years of service and renunciation. By acting in this way, the procedural correctness behind this dismissal relied on by the Company was recognised. On 5 September 1988, Mr. De Giorgio reached a judicial agreement with the Company granting him full settlement and release of the two court cases concerning the Company: one case for the recuperation of wages and other monetary benefits in respect of which it was agreed that the employer pay the amount of 892,905 pesos; and the other case for the recuperation of compensation for years of service and renunciation in respect of which it was agreed that the Company would pay 14,875,714 pesos, an amount equivalent to approximately US$65,000 (the Government's communication encloses copies of the judicial agreement and a memorandum concerning the liquidation of ENAP property dated 26 September 1988).
26. 411. The Government adds that on 7 September 1988, Mr. De Giorgio, using the advice of a specialist lawyer lodged, by virtue of article 20 of the Constitution, an appeal for protection against the Company before the Appeal Court of Punta Arenas. This appeal alleged that his dismissal was unlawful and arbitrary. The Court agreed to receive the appeal and heard the parties on 22 and 26 September 1988. In an unanimous decision, the Court rejected the appeal brought by Mr. De Giorgio and thus confirmed the legal and procedural correctness of the dismissal. On 27 September, Mr. De Giorgio's lawyers brought a further appeal before the Supreme Court against the decision of the Appeal Court; the Supreme Court unanimously confirmed the verdict of the Appeal Court of Punta Arenas. It was thus completely clear that the dismissal of Mr. De Giorgio was carried out legally and in accordance with the law.
27. 412. As regards the allegation that Mr. De Giorgio had been dismissed as a reprisal for his trade union activities, the Government states that since 30 October 1987, Mr. De Giorgio no longer held any trade union post since he had not been elected to office in his first-level union. This meant that at the time of his dismissal under section 155(f)of the Labour Code, Mr. De Giorgio had, for over ten months, not been involved in trade union activities or held a post as trade union representative.

D. The Committee's conclusions

1. 413. As regards the ban on entering the country imposed on a number of trade unionists, the Committee notes that the Government has decided to remove 25 names from the list of such persons, including trade unionists Agustén Muñoz and Juan Vargas Puebla. It also notes with interest Presidential Decree No. 303 of 1 September 1988 which put an end to all administrative bans on entering the country arising from the state of emergency. In this respect, it requests the Government to supply information on whether this decree applies to Mr. Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro.
2. 414. As regards the legal situation of trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, the Committee notes the information supplied by the Government that the sentence of internal exile (Bustos and Martínez) and the suspended sentence (Labraña) were handed down as the result of judicial proceedings and were not dictated by political considerations arising out of the appointment of these trade unionists to the executive of the recently constituted Single Central Organisation of Workers. The Committee also observes that the reason for the verdicts against the trade union leaders was their having called for a stoppage of activities on 7 October 1987 in order to make socio-economic claims. The Committee, having examined the reasons for the sentence, nevertheless recalls that the right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. This right does not only concern better working conditions or collective claims of an occupational nature, but also all problems of direct concern to the workers. The Committee notes with concern that sentences of internal exile and a suspended sentence have been imposed on these trade unionists under the State Security Act for having called a strike and recalls the principle that the detention and sentencing of workers' representatives in connection with activities related to the protection of the workers' interests infringes the free exercise of trade union rights.
3. 415. As regards the allegations presented by Workers' Trade Union No. 1 of the Consorcio Periodéstico de Chile SA (COPESA) concerning pressure brought to bear by the enterprise so that the trade union members would renounce the cost-of-living increases stipulated in collective agreements, the Committee notes the information supplied by the Government that an inspection revealed that the current collective agreement was fully complied with, that the employer has paid overtime and that all remuneration has been duly paid. It also observes that, according to the Government, the dismissals of the persons mentioned by the complainant were carried out in accordance with the provisions of the Labour Code. At all events, the Committee recalls that the Fact-finding and Conciliation Commission on Freedom of Association has emphasised that satisfactory labour relations depend primarily on the attitude of the parties towards each other and on their mutual confidence. It also considers that in cases in which it clearly appears that the dismissal of a worker was based on his trade union membership or activities, it would not appear that sufficient protection against acts of anti-union discrimination is accorded by legislation which enables employers to so act on condition that they pay the compensation prescribed by law for cases of unjustified dismissal.
4. 416. As regards the complaints presented by the National Confederation of Federations and Trade Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH) concerning alleged anti-union pressure brought to bear by employers on workers in the sector, the Committee notes the detailed information sent by the Government on inspections carried out in the establishments mentioned by the complainant and covering various aspects of labour relations in this sector. It also notes the information supplied on the dismissals of trade unionists Luis Benítez Galaz, Angel Catalán, Arsenio Angulo and Juan Montalbán and the resulting judicial proceedings. In this regard, the Committee would emphasise that, besides preventive machinery to forestall anti-union dismissals (such as, for example, a request for the prior authorisation of the labour inspectorate before carrying out a dismissal), a further means of ensuring effective protection could be to make it compulsory for each employer to prove that the motive for his intention to dismiss a worker has no connection with the worker's union activities.
5. 417. As regards the dismissal of 83 workers and 17 trade union leaders in the State Railway Enterprise because of a work stoppage on 6 April 1988, the Committee observes that the Government maintains that this stoppage was held for political reasons and the complainant maintains that it was motivated by a failure to reply to socio-economic claims. The Government states that 39 of these dismissed workers were reinstated on 1 August 1988 and that the remaining dismissed workers had instigated judicial proceedings against the enterprise. In this regard, the Committee recalls that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to all the problems which are of direct concern to the workers. The Committee has also concluded that when trade unionists or union leaders are dismissed for having exercised the right to strike, they have been punished for their trade union activities and have been discriminated against.
6. 418. As regards the complaint presented by the National Confederation of Federations and Trade Unions of Textile and Allied Workers (CONTEXTIL) concerning the difficulties faced by workers belonging to the trade union of the Curtiembre Interamericana enterprise, the Committee notes the information supplied by the Government concerning the inspection carried out by a labour inspector, who ascertained that the workers were engaged in a collective bargaining process and that they had been holding a lawful strike since 28 March; the Government also stated that no complaints had been lodged with the municipal labour inspectorate regarding unfair practices of the enterprise against the workers engaged in collective bargaining. In this regard, the Committee recalls the importance which it attaches to the principle that both employers and trade unions should bargain in good faith and make every effort to come to an agreement.
7. 419. As regards the alleged abduction of journalist Juan Pablo Cárdenas, the Committee notes the information supplied by the Government that this was not an abduction, but an arrest pursuant to a warrant issued by a court investigating a presumed offence, that the arrest was made by the investigating police, and that the life or physical integrity of Mr. Cárdenas was at no time in danger.
8. 420. As regards the arrest of trade union leader Mr. Freddy Nuñez, the Committee notes the information supplied by the Government to the effect that the arrest of Mr. Nuñez bears no relation to his trade union activities, but was motivated by the discovery of explosives and a secret chamber in a house belonging to him. It also notes that Mr. Nuñez was released unconditionally by the ad hoc prosecutor on 15 June 1988, that he suffered no physical ill-treatment during his detention and interrogation and that he is now freely engaging in his activities.
9. 421. As regards the arrest of trade unionist Jorge Millán on the grounds of a march organised by the National Grouping of Workers (CNT), of which he is the vice-chairman, the Committee observes that, according to the information supplied by the Government, his arrest was the result of a public disturbance caused by this march, and that he was apparently released by the police after having completed the statutory period of detention, without any legal proceedings having been instigated against him. In this regard, the Committee would emphasise the principle that the arrest by the authorities of trade unionists concerning whom no charges are subsequently brought is liable to involve restrictions on trade union rights. Governments should take steps to ensure that the authorities concerned have appropriate instructions to eliminate the danger which such detentions have for trade union activities.
10. 422. As regards the events which occurred in the towns of Iquique and Valparaíso during the May Day celebrations, the Committee notes the information supplied by the Government that police intervention was due to the public disturbances which occurred in both towns. As regards the alleged arrest of trade unionists Mr. Luis Borg and Mr. Fanor Castillo, the Committee notes the information supplied by the Government that these persons had not been entered in police registers as having been arrested in connection with these incidents. Neither had trade unionists Sergio Aguirre Martínez and José Gaete been recorded in police registers as having been injured. The Committee also notes the fact that the College of Teachers of Chile lodged a criminal complaint against police officers for damage, injuries and breaking and entering at its premises in Iquique and that another suit had been brought for assault of police officers. In this regard, the Committee would recall that while trade unionists must observe legal provisions aimed at maintaining public order, the public authorities should refrain from any interference which would restrict the right of trade unionists to organise and hold their meetings freely; and that the right to organise public meetings and processions on May Day constitutes an important aspect of trade union rights.
11. 423. As regards the complaint presented by the workers' trade union of the "Dos en Uno" foodstore, the Committee notes the information supplied by the Government following an inspection made by a labour inspector, who ascertained that a lawful strike had been held between 5 May and 23 June 1986 in connection with collective bargaining, and that staff reductions bore no relation to the collective bargaining process or to the lawful strike. In this regard, the Committee points out that mass dismissals of workers following a strike cannot be considered as an isolated event, and can lead to the conclusion that workers have been punished for their trade union activities and have been discriminated against.
12. 424. As regards the dismissal of the former trade union leader Mr. José Ruiz De Giorgio by the National Petroleum Company, the Committee takes note of the information presented by the Government to the effect that the dismissal took place under the legal provisions of the Labour Code and that all employment benefits were paid to him in accordance with the law. The Committee also notes that Mr. De Giorgio brought an appeal for protection before the Appeal Court alleging that his dismissal was illegal and that this was unanimously rejected by that Court and confirmed by the Supreme Court. The Committee reiterates the principle that it expressed in paragraph 415 above.
13. 425. Lastly, the Committee notes that the Government has not supplied full information on the dismissal of a number of workers from the State Railway Enterprise and the 17 union leaders due to a strike there. The dismissed leaders are: José Criado, chairman of the National Federation of Railway Workers; Germán Díaz, secretary of the Federation; Miguel Muñoz, its secretary-general; Ceferino Barra, chairman of No. 1 Union; Juan Díaz, secretary of that union; Rafael Rivera, its treasurer; José Ortega, director of No. 1 Union of Santiago; Guillermo Munizaga, also director of that union; Hugo Salinas, treasurer of the No. 1 Union of San Bernardo; Oscar Cabello, also director of that Union; Tito Ramírez, secretary of Trade Union No. 4 of Santiago; Juan Contreras, chairman of the No. 5 Traction Union; José Morales, secretary of that Union; Orlando Ganona, treasurer of that Union and Iván Orellana and Luis Pradenas, both directors of that Union.