Report in which the committee requests to be kept informed of development - REPORT_NO334, June 2004

1. 227. The Committee examined this case at its May-June 2003 meeting and presented an interim report to the Governing Body [see 331st Report, paras. 169-180, approved by the Governing Body at its 287th Session (June 2003)].
2. 228. The Government sent new observations in communications dated 12 January and 9 February 2004.
3. 229. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 230. At its May-June 2003 meeting, the Committee made the following recommendations [see 331st Report, para. 180]:
   • (a) In the circumstances of this case, the Committee requests the Government to adopt the necessary measures to ensure that Mr. Yapur Ruíz is reinstated in his place of work at least until the appeals lodged in this case are decided by the court. The Committee also requests the Government to keep it informed of developments.
   • (b) As regards the serious allegations concerning the Trade Union of the Sanitation Works Company of the Vth Region, ESVAL S.A., the Committee notes with regret that the Government has not communicated its observations in this respect and requests it to send them without delay in order to examine these allegations in full knowledge of the facts.

B. The Government’s reply

1. 231. In its communications of 12 January and 9 February 2004, the Government refers to the situation concerning the dismissal of the trade union official Erick Dusan Yapur Ruíz, director of trade union No. 3 of the Pedro Pablo Castillo public transport company. The Government points out that, on 14 May 2002, a complaint alleging anti-union activities by the employer was brought before the First Labour Court of San Miguel, Case No. 3234?2002. The Court handed down a ruling on 25 June 2002, finding the employer guilty of the aforementioned activities and imposing a fine of 20 UT (payment units) (1 UT = US$50). The defendant lodged an appeal and submitted an application for judicial review for error of form. The Labour Directorate in turn lodged an appeal for review. The Supreme Court automatically quashed the final ruling because essential evidential procedures had been omitted. The court of first instance (First Labour Court) consequently brought the case back to the preliminary hearing stage. On 28 March 2003, the Labour Court ordered the reinstatement of the dismissed trade union official, cautioning the employer that any failure to comply with the court order would result in detention. On 2 May 2003 the company lodged an appeal for preventive constitutional protection (amparo). The Court of Appeal rejected this appeal but replaced the threat of detention with a fine of 1 UTM (monthly payment unit). On 7 August 2003 a final ruling was handed down, finding the defendant guilty of anti-union activities and imposing a fine of 50 UTM, ordering the immediate reinstatement of the trade union official Mr. Yapur Ruíz and ordering the defendant to pay the costs of the case. On 20 August 2003 the defendant lodged an appeal and submitted an application for judicial review for error of form to the Court of Appeal. On 19 September 2003, the Court declared the application for judicial review to be inadmissible and, as regards the appeal, declared that proceedings relating to this matter were before the San Miguel Court of Appeal. This appeal is still pending and has been neither pleaded nor settled up to the date of the report supplied by the Labour Directorate in Case No. 2058 of 26 November 2003.
2. 232. With regard to the situation of ESVAL, and in particular with respect to Mr. Aquiles Mercado, president of one of the enterprise trade unions, the Government declares that, on 1 April 2003, a former member of the trade union (of two members who had that status) brought a complaint (Case No. 708-03) before the Regional Electoral Tribunal of the Vth Region concerning the leadership elections held on 20 March 2003, in which Mr. Aquiles Mercado, the only member of the union at the time, was elected. The Electoral Tribunal decided, in accordance with a ruling of 30 October 2003, to annul that election, also declaring that a new election could not be held, since the trade union did not achieve the quorum laid down in article 227 of the Labour Code. That ruling was the subject of an appeal for reversal (the only admissible form of appeal) by Mr. Aquiles Mercado. Up to the date of the report supplied by the Labour Directorate in Case No. 2058 of 26 November 2003, that appeal has not been settled. Article 227 of the Labour Code lays down the following provisions:
   • Article 227. In order to form a trade union in an enterprise which has more than fifty workers, a minimum of twenty-five workers representing at least ten per cent of the total of those who provide services in the said enterprise shall be required.
   • Notwithstanding the above, in order to form a trade union in enterprises in which no trade union already exists, at least eight workers shall be required, and the quorum required in the previous subparagraph must be achieved within a period of not more than one year, on expiry of which the legal personality of the union shall statutorily cease to exist, should that requirement fail to be met.
   • If the enterprise has fifty workers or less, a trade union may be formed by eight of those workers.
   • If the enterprise has more than one establishment, the workers belonging to each establishment may also form a trade union, with a minimum of twenty-five workers representing at least thirty per cent of the workers of that establishment.
   • Notwithstanding the above, whatever the percentage that they represent, a trade union may be formed by two hundred and fifty or more workers of the same enterprise.
3. 233. In conclusion, the Government points out that the problem relating to Mr. Aquiles Mercado, according to information from the Labour Directorate, is that he elected himself president of a trade union which has only one member: himself. In this case there is no violation of freedom of association.

C. The Committee’s conclusions

1. 234. With regard to the allegations concerning the dismissal of the trade union official, Mr. Erick Dusan Yapur Ruíz, the Committee had noted in its previous examination of the case that the Government had informed it that he had been dismissed illegally in 2002 (as had been verified by the labour inspectorate) and that the court of first instance and the appeal court had ordered his reinstatement and imposed a heavy fine on the Pedro Pablo Castillo company [see 331st Report, para. 177].
2. 235. The Committee notes the new statements by the Government to the effect that, after various appeals, on 28 March and 7 August 2003, the judicial authority again ordered on two occasions (the last of these via a final ruling) the reinstatement of the aforementioned trade union official and imposed fresh sanctions on the company, which continued to appeal.
3. 236. Under these circumstances, the Committee deplores the delay in this case and reiterates the conclusions that it formulated at its May-June 2003 meeting [see 331st Report, paras. 178 and 179]:
   • The Committee recalls that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 739).
4. 237. In view of the circumstances of this case, the Committee once again requests the Government to adopt measures to ensure that Mr. Yapur Ruíz is reinstated in his post at least until the last appeal brought before the courts is settled. The Committee also requests the Government to keep it informed of developments.
5. 238. With regard to the allegations concerning the Trade Union of the Sanitation Works Company of the Vth Region (ESVAL S.A.), the Committee recalls that the complainant organization had alleged that serious incidents had occurred against that union, especially against Mr. Aquiles Mercado, the president of the union, and other officials of the union, and that the union had been the subject of pressure and harassment from the company since 1996; according to the complainant organization, since the trade union firmly opposed the privatization of the company, attempts were made to suborn the staff by means of threats and dismissals; officials’ work equipment (telephones, computers) was illegally confiscated; they were prohibited from performing their duties and payments of their wages were delayed in order to intimidate them and make them leave the union [see 331st Report, para. 179].
6. 239. The Committee notes the Government’s statements to the effect that, on 30 October 2003, the judicial authority annulled the 20 March 2003 election of Mr. Aquiles Mercado as president of the trade union since the union had just one member (Mr. Aquiles Mercado himself), and that under these circumstances article 227 of the Labour Code concerning the minimum number of workers for forming a trade union was not respected. The Committee notes the fact that Mr. Aquiles Mercado lodged an appeal for reversal which has still not been settled.
7. 240. The Committee nevertheless wishes to emphasize the fact that the complaint was submitted by the complainant organization in November 2002 and therefore predates the unusual elections referred to by the Government. Consequently, the Committee requests the Government to carry out an investigation into the allegations and keep it informed of its result.