Definitive Report - REPORT_NO305, November 1996

1. 117. The complaint in this case is contained in communications from the Trade Unions International of Workers of the Building, Wood and Building Materials Industries (UITBB) dated 25 January and 13 April 1995. This organization subsequently sent additional information in a communication dated 16 May 1995. The Government sent its observations in communications dated 2 October, 2 and 20 November 1995 and 3 January and 15 May 1996.
2. 118. 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. The complainant's allegations

1. 119. In its communications of 25 January and 13 April 1995, the Trade Unions International of Workers of the Building, Wood and Building Materials Industries (UITBB) alleges that two workers employed in the IMS consortium died accidentally on 17 January 1995 as the result of the collapse of a slope in a tunnel in which no protection on safety measures had been taken. The complainant organization states that the National Confederation of Trade Unions of Workers in Building, Wood, Building Materials and Related Activities (CNTC) had denounced the precarious occupational safety and health conditions which existed at this worksite, but that no attention was given to this appeal by the enterprise's management, the respective ministries or the administration of the underground railway.
2. 120. The complainant organization adds that in May 1994 the enterprise management dismissed numerous workers who had participated in a brief work stoppage in support of their claims concerning wages and occupational safety and health, and that after this incident, the enterprise management systematically abolished the trade union organization which the workers had set up.
3. 121. Furthermore, the complainant organization states that "there is no right to collective bargaining" for building workers. Finally, the complainant organization points out that there is a permanent attitude of aggression towards workers' organizations and that "as a corollary to the firm defence and promotion of workers' claims in the IMS enterprise, the latter initiated action contrary to any sense of ethics, and that the Government, which in various ways is encouraging the development of trade unionism controlled by employers, is also responsible for this". The complainant organization alleges that so-called guards are recruited by the enterprise for the purpose of preventing or neutralizing activity by trade union leaders or officials and that the President of the CNTC, Mr. Adrián Fuentes Hermosilla, was threatened and prevented from entering the worksite.

B. The Government's reply

1. 122. In its communication of 2 October 1995, the Government states in connection with the alleged systematic liquidation of the trade union organization that the Labour Directorate has reviewed the records concerning the trade union organizations set up in the building contractor enterprises for line 5 of the metropolitan underground railway of Santiago and was able to establish the existence of the Trade Union of Workers of the building enterprise IMS Ltda., set up on 12 May 1994, which re-elected its officers following the resignation of its previous directors on 2 February 1995.
2. 123. As for the occupational accident that cost the lives of two workers on 17 January 1995 in construction section D of line 5 of the metropolitan underground railway (the collapse of the west slope of the worksite in which Víctor Hugo Oñate and Juan Ramón Moraga Muñoz died), the Government states that as soon as the Labour Services were notified of the accident they immediately sent officials to the worksite to verify what had happened, who promptly took all possible measures to ensure compliance with safety standards. After a visual inspection, work in section D was immediately suspended due to the imminent danger to the health and lives of the workers in light of further possible collapses. The suspension affected the work of the building contractor enterprise IMS Ltda., the mandator of which is Metro SA, which in turn is responsible for the design of the above-mentioned works. Prior to this accident there had been no denunciations of safety problems.
3. 124. The Government adds that the Labour Services immediately requested reports from various technical bodies (Metropolitan Enterprise of Sanitary Works, National Geology and Mining Service, Governor's Office of the Metropolitan Region) as well as technical reports on the investigation of the accident from the mandator enterprise Metro SA, and the Safety Mutual Insurance Society, a body responsible for accident prevention in the works of the enterprise and the social security administrator in respect of occupational accidents and diseases. Cooperation was also requested from the Ministry of Public Works, which appointed two engineers in ground mechanics. On the basis of these reports, and in particular the instructions given by the mandator Metro SA for a reduction in the inclination of the slope and the construction of a step to reduce the height of the slope from 12 to 8 metres, and the report of the engineers of the Ministry of Public Works, which indicated that the proposed measures were sufficient to eliminate the imminent danger to the health or lives of the workers which had given rise to the suspension of work. Resolutions were issued which at first partially lifted the suspension placed on the works, to enable repairs to be carried out and, once the danger had ceased, lifted the general suspension affecting section D. Thus, work was suspended until 9 February 1995. Finally, the Government states that as a result of these unfortunate events, the Labour Directorate concluded an agreement on the inspection of public works with the Ministry of Public Works, which is currently in the implementation stage. In the same way, the work of the Labour Directorate and the Metropolitan Environmental Health Service is being coordinated, and together they will deal with the subjects of occupational safety and health, and in particular serious fatal accidents. The Government states that at present a Bill is before the Senate of the Republic which will broaden the powers of the Labour Directorate in the inspection of occupational safety and health.
4. 125. In its communications dated 2 and 20 November 1995, 3 January and 15 May 1996, the Government refers to the allegations of the dismissal of workers from the IMS building enterprise in May 1994, on which it provides the following information:
   • In May 1994 the IMS Ltda. building enterprise dismissed 56 workers who were employed on line 5 of the Santiago underground. The grounds given for terminating the contract in 36 cases was that set out in section 161, paragraph 1, of the Labour Code, which reads as follows: "Notwithstanding the provisions contained in the foregoing sections, an employer may terminate a contract of employment on grounds of the requirements of the enterprise, establishment or service, such as those deriving from their streamlining or modernization, drops in productivity, changes in the conditions of the market or of the economy, which render necessary the separation of one or more workers, or the fact that the employee's work or skills are not suited to his or her task."
   • The other 20 workers whose contracts were terminated were dismissed on the grounds set out in section 160, paragraph 3, of the Labour Code, which states: "The contract of employment shall terminate without the employee being entitled to any compensation when the employer terminates it for one or more of the following reasons: ... desertion by the employee of his post without due cause for two consecutive days, two Mondays in the month or a total of three days during the same period of time; similarly, the unjustified absence, or absence without prior notice, of an employee responsible for an activity, job or machine whose abandonment or stoppage entails a serious disruption in the running of the operation."
   • The Labour Services have no record of workers being dismissed as a reprisal for their setting up a trade union, nor have they any information about the incident described as a "brief work stoppage" by workers at the IMS enterprise in May 1994. Dismissals can be contested before the labour courts.
5. 126. Turning to the alleged non-existence of the right to collective bargaining for construction workers, the Government states that section 305 of the Labour Code provides as follows: "The following shall not be permitted to bargain collectively: (1) workers who are parties to contracts of apprenticeship and workers engaged exclusively for a specified temporary or seasonal project or job." The Government states that in practice, however, in cases of large-scale work which may be of a temporary nature, collective agreements have been concluded which have led to a substantial improvement in the benefits granted on an individual basis. This situation is the case in the building enterprise IMS Ltda., where a collective agreement was signed with the mediation of the regional authorities of the Labour Services on 31 March 1995 by means of unregulated or voluntary collective bargaining. The Government states that in January 1995 it submitted a Bill to the National Congress establishing a collective bargaining procedure for the trade unions of temporary or seasonal workers.
6. 127. With respect to the supposed threats against the President of the National Confederation of Trade Unions of Workers of Building, Wood Building Materials and Related Activities of Chile, Mr. Adrián Fuentes Hermosilla, the Government states that the Labour Services have received no denunciations or complaints and that the Penal Code provides severe penalties for those who issue threats. Likewise, concerning the alleged encouragement given to the development of trade unionism controlled by employers which disregards the true interests of the workers, the Government emphasizes its support of the principle of trade union autonomy and states that the Labour Services have no information available to confirm such allegations; under the provisions of sections 289 to 294 of the Labour Code, any party may denounce anti-trade union or unfair practice to the labour courts, which are empowered to investigate and to order the redress or modification of acts which constitute unfair practice, and may even apply substantial fines. Finally, the Government states that a Bill has been submitted to the National Congress which will broaden protection against anti-trade union dismissal.

C. The Committee's conclusions

1. 128. The Committee observes that in this case the complainant organization alleges: (1) the dismissal of a number of workers in May 1994 from the IMS building enterprise after they held a brief work stoppage in support of their claims concerning wages and occupational safety and health; (2) the impossibility for construction workers to bargain collectively; (3) the accidental death of two workers during the construction of line 5 of the metropolitan underground railway being carried out by the IMS enterprise; (4) the presence of guards recruited by the enterprise to prevent or neutralize activity by trade union leaders or officials and the threats against the President of the CNTC who was barred from entering the worksite; and (5) the encouragement given by the Government to the development of trade unionism controlled by employers.
2. 129. As regards the allegation relating to the dismissal of a number of workers from the IMS building enterprise in May 1994 after they had held a brief work stoppage in support of their claims concerning wages, occupational safety and health, and the subsequent attempt to systematically abolish the trade union organization of the IMS enterprise, the Committee observes that the Government in its reply refers to 56 dismissals in May 1994 (36 workers were dismissed in May 1994 on the grounds set out in section 161, paragraph 1, of the Labour Code - requirements of the enterprise, streamlining, changes in the economy, etc. - and 20 others on the grounds set out in section 160, paragraph 3 - desertion of the employee's post without due cause). The Committee also notes that the Government has no record of the brief work stoppage referred to by the complainant and underlines the right of those dismissed to take legal action. In this regard, given that the Government has not indicated the concrete reasons for the various dismissals and has simply indicated the legal grounds for dismissal invoked by the enterprise, the Committee considers that there is evidence that these dismissals were more than likely of an anti-trade union nature. In these circumstances, the Committee recalls as a general point that respect for the principles of freedom of association requires that workers should not be dismissed for engaging in legitimate trade union activities and therefore requests the Government to take measures for the reinstatement of the workers concerned as far as still possible. The Committee notes that the Government has submitted to Congress a Bill which will broaden protection against acts of anti-trade union discrimination and requests the Government to keep it informed of how the submission procedure progresses.
3. 130. Turning to the allegation that under the Labour Code it is impossible for temporary workers to bargain collectively, the Committee notes that the Government states that in spite of the provisions of the Labour Code, in practice collective agreements have been concluded - independently of the provisions of the Labour Code - in large-scale worksites and that this was the case in the IMS enterprise, where a collective agreement was concluded in March 1995, with the mediation of the regional authorities of the Labour Services. The Committee similarly notes that the Government has submitted a Bill to the National Congress establishing a concrete collective bargaining procedure for the trade unions of temporary workers. The Committee recalls that these workers should be able to negotiate collectively and requests the Government to keep it informed of how the submission of this Bill progresses.
4. 131. With respect to the accidental death of two workers during the construction of line 5 of the metropolitan underground railway being carried out by the IMS enterprise, the Committee notes the Government's statement that various measures were taken following the accident to eliminate dangers to the health or lives of workers (visual inspection, suspension of work, request for reports from technical bodies, etc.). In this connection, the Committee recalls that it is not for it to rule on issues concerning occupational safety and health.
5. 132. As for the allegations concerning: (1) the presence of guards recruited by the IMS enterprise to prevent or neutralize trade union activity and the threats made against the President of the CNTC, Mr. Adrián Fuentes Hermosilla; and (2) the encouragement given by the Government to the development of trade unionism controlled by employers, the Committee takes due note of the Government's declaration that the Labour Services have no information to confirm these allegations and that, under the provisions of the Labour Code (sections 289 to 294) any party may denounce anti-trade union or unfair practice to the labour courts or submit a complaint to the criminal courts in the event of threats. Given this situation, the Committee can only observe that the allegations made by the complainant organization are very vague and that it has not provided any additional details in spite of having been invited to do so.