Informe provisional - Informe núm. 70, 1963

1. 175. The Committee has examined this case on two previous occasions: at its 30th Session (February 1962), when it submitted an interim report in paragraphs 42 to 54 of its 61st Report, which was approved by the Governing Body at the 152nd Session (June 1962); and at its 32nd Session (October 1962), when it submitted another interim report in paragraphs 447 to 471 of its 66th Report, which was approved by the Governing Body at the 153rd Session (November 1962).
2. 176. Paragraph 471 of the 66th Report reads as follows:
3. 471. In the circumstances, the Committee recommends the Governing Body:
   • (a) to request the Government, having regard to the fact that Mr. Sánchez Ossandón was dismissed by his employer on his return from the International Labour Conference as adviser to the Workers' delegate and that a penalty has been imposed by the Supreme Court on the employer, to indicate whether he has been reinstated with the Madeco company or, if this is not the case, in what way he has been compensated for the harm done to him by his dismissal;
   • (b) to request the Government to furnish its observations as soon as possible on the allegation that the Chilean Confederation of Industrial and Commercial Workers was unable to put forward candidates for membership of the Workers' delegation to the 46th Session of the International Labour Conference for fear of reprisals by the employers.
4. 177. That decision of the Governing Body was communicated to the Government by letter dated 13 November 1962.
5. 178. At its 33rd Session (February 1963) the Committee deferred consideration of the case because it had not received the information requested from the Government.
6. 179. The Chilean Government sent the said information on 28 February 1963.
7. 180. The original complaint was contained in a communication addressed directly to the I.L.O on 25 August 1961 by the Chilean Confederation of Industrial and Commercial Workers.
8. 181. In a letter dated 4 October 1961 the Chilean Confederation of Privately Employed Clerical Workers submitted a complaint on the same grounds. The Chilean Confederation of Industrial and Commercial Workers supplemented by a letter dated 20 October 1961 the information contained in its first communication. The contents of both letters were communicated to the Government on 3 November 1961. By a communication dated 31 January 1962 the Chilean Confederation of Industrial and Commercial Workers furnished further information, which has also been transmitted to the Government.
9. 182. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the Dismissal of a Trade Union Officer
  183. 183 In a communication dated 20 November 1961 the Government of Chile presented its observations on the complaints which had been transmitted to it on 3 November 1961.
  184. 184 The complainants allege that Mr. Enrique Sánchez Ossandón, Chairman of the Chilean Confederation of Industrial and Commercial Workers and a member of the Central Mixed Wages Commission, who was employed by Manufacturas de Cobre (Madeco), S.A., was dismissed from that undertaking for having attended the 45th Session of the International Labour Conference, held in Geneva in June 1961, as adviser to the Chilean Workers' delegate. The complainants add that Mr. Sánchez Ossandón was appointed adviser to the Workers' delegate under Decree No. 412 of 2 June 1961; that on the same day Mr. Sánchez Ossandón informed Madeco of his appointment, sent a copy of the communication to the Labour Inspectorate and asked the Ministry of Labour to notify Madeco of the appointment, which was done on 5 June by official letter No. 425; that Madeco, in its reply on 9 June 1961 to official letter No. 425, stated that the company reserved all the necessary rights in regard to the situation created by Mr. Sánchez Ossandón through having absented himself from his work without previous permission. The complainants enclosed with their complaint a copy of the said Decree No. 412, of the letters dated 2 and 9 June 1961 and of minute No. 425 of 5 June 1961.
  185. 185 Again according to the complainants, when Mr. Sánchez Ossandón returned to Chile and reported to the Madeco company to resume his duties, he was not allowed access to his work and was informed that his service was terminated; he reported this to the Labour Inspectorate on 2 August and at the same time lodged a request with the labour courts to be reinstated, since he enjoyed trade union privilege through being a member of the Central Mixed Wages Commission and also Chairman of the Confederation of Metal Workers' Unions. Mr. Sánchez Ossandón brought the case to the notice of the Ministry of Labour, which, according to the complainants, made representations to Madeco but could not induce it to change its attitude. The complainants add that the attitude of Madeco is merely a continuance of a campaign of outright persecution against Mr. Sánchez Ossandón on the sole ground of his trade union activity.
  186. 186 In its reply dated 20 November 1961 the Government of Chile stated that as soon as the competent authorities were informed of the matter they had instructed the labour services to investigate the facts and demand compliance with the rules protecting the privilege of trade union officers, of whom Mr. Sánchez Ossandón was one. The Government added that the Provincial Labour Inspectorate had taken measures accordingly and, in view of the undertaking's refusal to reinstate Mr. Sánchez Ossandón, had laid information with the labour courts for contravention of the existing rules which forbid dismissal, or the mere suspension of trade union rights, without previous statutory permission. Further, the Government added in its reply, the Ministry of Labour had directly requested Madeco to explain the implications of its decision and if possible to reconsider the step it had taken, but had been unsuccessful in this; a memorandum from the Managing Director of Madeco contended that Mr. Sánchez Ossandón had not been dismissed but that his work contract had lapsed for reasons which may be summed up as frequent absences from work and abandonment of his post when he went to Geneva. The Government concluded by saying that, since the Ministry of Labour had by process of law formally laid information through the Provincial Labour Inspectorate, Santiago, against Madeco for contravention of a law, the matter must now await a formal decision by the court.
  187. 187 The Committee observed at its meeting in February 1962 that there appeared to be no contradiction between the facts as stated by the complainants and the statement by the Government, which not only did not refute them but confirmed them.
  188. 188 The Committee recalled on that occasion that paragraph 2 of article 40 of the Constitution of the I.L.O provides that:
• Delegates to the Conference, members of the Governing Body and the Director-General and officials of the Office shall likewise enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation.
  189. 189 At its meeting in February 1962 the Committee considered, as it had done in a previous similar case, that no delegate to any organ or conference of the I.L.O should be interfered with in any way to prevent or to deter him from carrying out his functions and that it was evident that if a delegate, after attending a conference convened by the International Labour Organisation, could become the subject of measures such as had been taken in the present case, the possibility of such measures being taken was such as to prevent or to deter the delegate from carrying out his functions. It recognised, however, that the Government appeared at once to have realised the importance of the case and to have intervened directly with the undertaking which employed Mr. Sánchez Ossandón in order to induce it to reinstate him, and had subsequently showed its strong disapproval of the contravention committed by the Madeco company by initiating judicial proceedings which were now being conducted by the Santiago Provincial Labour Inspectorate.
  190. 190 The Committee also recalled in February 1962 that in all cases where a matter was the subject of pending judicial proceedings and the decision might make available information of assistance to the Committee in appreciating whether allegations were well founded, it had followed the practice of not examining the case until it had been informed of the result of the action instituted. It therefore decided at that time to request the Government to inform it of the result of the action instituted and, in particular, to furnish the text of the judgment given and of the legal reasons and conclusions adduced, and in the meantime to adjourn examination of the case.
  191. 191 The Government attaches to its communication of 4 September 1962 copies of the decisions of the courts of first and second instance in respect of the action against the Madeco company and of the judgment given by the Supreme Court pursuant to the appeal lodged by Madeco against the findings of the court of second instance.
  192. 192 Perusal of these judgments reveals, as the Committee observed in October 1962, that following an appeal against a ruling that there were insufficient grounds for the action, that decision was quashed, and the court, declaring that the Madeco company was not entitled to terminate Mr. Sánchez Ossandón's employment, on the ground that by absenting himself from work he had caused his contract to lapse, unless it applied for statutory permission to do so-and there was no record of any such application having been made imposed a fine of 500 escudos on the company for contravention of the law. The Supreme Court rejected the appeal lodged by Madeco against this decision.
  193. 193 The Committee also observed in October 1962 that in a number of earlier cases, it had gone on record as follows: one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment-such as dismissal, transfer or other prejudicial measures and this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee, it was recalled, had also stated that one way of ensuring such protection is to prohibit dismissal of such officials, either during their period of office or for a certain time thereafter, except, of course, for serious misconduct, and that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure application of the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom.
  194. 194 The Committee further observed in October 1962 that in the present case Mr. Sánchez Ossandón appears to have had at his disposal every legal means of defending his rights, and that the company has in fact been fined for contravention of section 9 of Act No. 7295, which lays down that:
• Members of joint salary boards and their substitutes shall be entitled to the immunity from dismissal conferred upon staff delegates and members of the committees of management of trade unions (of sections 155 and 376 of the Labour Code).
• Section 155 of the Labour Code stipulates that a staff delegate may not be dismissed from his employment otherwise than for a reason declared by the competent labour court to be sufficient, while section 376 of the Code states that members of the committees of management of unions may not be dismissed from an undertaking without the consent of the labour judge.
  195. 195 Finally, as the Committee observed in October 1962, it is not clear from the texts of the judgments given in these proceedings whether Mr. Sánchez Ossandón has in fact been reinstated in his post, as would seem to be called for under the provisions quoted in the preceding paragraph and in the light of the ruling given by the Supreme Court of Chile to the effect that:
• a member of the committee of management of a trade union who is dismissed from his employment without statutory permission having been sought as required under the Labour Code is entitled to reinstatement (Supreme Court, Appeals, Revista jurisprudencia al dia, VIIIth Year, 1936, Nos. 354-355, p. 357),
• or whether the dismissal, irrespective of the fine imposed on the undertaking, has been compensated by the payment of an indemnity to the person concerned.
  196. 196 Consequently, in October 1962 the Committee considered that, before coming to a decision on this aspect of the complaint, it should recommend the Governing Body to request the Government to state whether Mr. Sánchez Ossandón had been reinstated with the Madeco company or, if this were not the case, to indicate the manner in which he had been compensated for the harm done to him by his dismissal.
  197. 197 In its communication dated 6 February 1963 the Government states that the Ministry of Labour requested its competent services to report whether Mr. Sánchez Ossandón had been reinstated or had received compensation for the harm done him by his dismissal; that by minute No. 616 of 28 January 1963 the Provincial Labour Inspectorate of Santiago reported that an official had been to the Madeco firm and ascertained that Mr. Sánchez " has not as yet been reinstated nor has he received any compensation, since the compensation he will receive still depends on the decision to be given in the case being considered before the labour courts ".
  198. 198 Although the proceedings taken by the Ministry of Labour against Madeco for the unlawful act of dismissing Mr. Sánchez Ossandón without previous judicial authorisation have resulted in conviction of the firm to pay a fine, which has already been collected, the Committee deduces from the Government's reply of 6 February 1963 that no judgment has been given in the proceedings taken by Mr. Sánchez Ossandón in the labour courts with a view to obtaining reinstatement in his post.
  199. 199 In these circumstances, since the judgment of the labour court in the action taken by Mr. Sánchez Ossandón may make available information that would be useful in appreciating whether the allegations are justified, the Committee, following its usual practice considers that before it proceeds to examine this particular allegation the Government should be asked to send a copy of the judgment in that action.
  200. 200 Accordingly the Committee recommends the Governing Body to ask the Government to send the text of the judgment rendered in the action taken by Mr. Sánchez Ossandón before the labour courts, and to decide that in the meanwhile examination of this allegation shall be deferred.
• Allegations regarding Non-Submission of Applications for Membership of the Chilean Workers' Delegation at the International Labour Conference for Fear of Reprisals by the Employers
  201. 201 In a later communication dated 29 May 1962 the Chilean Confederation of Industrial and Commercial Workers alleges that its leaders " were unable to apply for membership of the Chilean Workers' delegation to the 46th Session of the International Labour Conference because the Chilean Ministry of Labour would give no guarantee which would enable candidatures to be put forward freely for such appointments ". In this connection the complainants refer to the dismissal of Mr. Sánchez Ossandón on his return to the country after attending the 45th Session of the Conference as a member of the Chilean Workers' delegation. The complainants attach to their communication copy of a letter sent by them to the Ministry of Labour in this respect on 9 April 1962. This communication was brought to the attention of the Government of Chile in order that it might transmit its observations.
  202. 202 In October 1962 the Committee, which had not then received the Government's reply, considered that it was not competent either to examine questions relating to the credentials of delegates and advisers to the International Labour Conference or to consider allegations that a government had not treated an occupational organisation in accordance with the Constitution of the I.L.O when designating delegates to the Conference; these were questions which fell solely within the competence of the Credentials Committee of the Conference.
  203. 203 However, the Committee pointed out in October 1962 that the allegation did not relate to the manner in which a government designates Workers' delegates, but to the effect of infringements of trade union rights-by employers, not by the government; in the view of the complainants, the exercise of those rights was not adequately guaranteed; and the workers' organisation concerned feared the consequences of again submitting its legitimate claims to the Government, to be taken into account when delegates were designated. In other words the Committee considered this aspect of the case to be directly consequential to the allegations examined above, and recommended the Governing Body to request the Government to furnish its observations on this particular allegation as soon as possible.
  204. 204 The Government sent the said observations in its communication of 6 February 1963.
  205. 205 In that communication the Government states as follows: that neither before nor after the case of Mr. Sánchez Ossandón did it have any knowledge of employers' decisions involving the termination of the employment of salaried employees or wage earners who were members of delegations to international conferences; that the case of Mr. Sánchez Ossandón was therefore exceptional; that the members of the Workers' delegation to the 46th Session of the International Labour Conference had no difficulties of any kind with their employers, which showed that the allegation of fear of reprisals was unfounded; and that the government authorities had taken and would take all the steps in their power to safeguard the employment security of trade union officers to the degree allowed by existing legislation, although the final decision lay with the labour courts.
  206. 206 It appears to follow from the Government's statement that the fear to which the complainants allude could only derive from the dismissal of Mr. Sánchez Ossandón (which had led to two actions before the courts, initiated by the Government and by the person directly concerned), since the Government declares that there have been no reprisals by employers-for participation by their employees in international meetings-in any case previous or subsequent to that of Mr. Sánchez Ossandón. The Committee also notes the Government's formal declaration that its authorities have taken and will take all necessary steps to safeguard the employment security of trade union officers under existing legislation.
  207. 207 In those circumstances, since the complainants have not adduced sufficient evidence in support of this allegation, whereas the Government in its reply points out the exceptional character of the case of Mr. Sánchez Ossandón and states that the authorities have taken and will take all necessary steps to safeguard the employment security of trade union officers under existing legislation, the Committee considers that there would be no object in pursuing this aspect of the case.