Informe provisional - Informe núm. 329, Noviembre 2002

1. 316. The complaint is set out in a communication from the Trade Union of Pilots and Technicians of Lan Chile (SPTLC) dated 29 January 2002. The Government sent its observations in a communication of 31 July 2002.
2. 317. 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. The complainant’s allegations

1. 318. In its communication of 29 January 2002, the Trade Union of Pilots and Technicians of Lan Chile S.A. makes allegations concerning a series of illegal labour practices contrary to Conventions Nos. 87 and 98 in connection with negotiations aimed at concluding a new collective agreement. The complainant organization explains that in 2001, Chile witnessed an intense labour dispute between the trade union and Lan Chile S.A., which is the country’s largest commercial air transport company. Before contractual negotiations began on 15 October 2001, when the parties were legally obliged to maintain the status quo, the company started a fierce and very publicized campaign against the trade union. Consequently, the trade union reacted by taking industrial action, which included “work-to-rule”, in an attempt to counteract the practices used against it. As a result of the campaign carried out by the company, in both the place of work and the press, the trade union has lost over 80 per cent of its members in recent months.
2. 319. Initially, the company tried to rid itself of unionized pilots by transferring them to recently created subsidiary enterprises. The company achieved this by negotiating directly with trade union members and promising them fast-track promotion in these subsidiaries provided they withdrew trade union membership. Between May and September 2001, the company managed to transfer collective work units to subsidiaries or enterprises abroad, although at significantly higher operational costs.
3. 320. The company subsequently dismissed various pilots, all of whom were active members of the trade union. On 14 September 2001, the company dismissed 73 unionized pilots, supposedly for “disciplinary” reasons. In particular, the company dismissed all pilots who attended a speech given that month by John Darrah, President of the Allied Pilots Association. Another 13 pilots and trade union members were later dismissed for disciplinary reasons between 1 and 4 October. At the same time, 22 pilots were dismissed owing to a reduction in the workforce. Many of the pilots dismissed days before the collective bargaining process began were very active members of the trade union; eight of these pilots were former directors of the trade union.
4. 321. The management then launched a final assault on the remaining members and, both directly and indirectly, threatened them with dismissal. For example, various supervisors telephoned the wives or other family members of pilots to threaten and intimidate them into exerting pressure on their husbands to withdraw trade union membership and sign individual contracts with the company. Furthermore, the company called upon the services of non-unionized pilots to circulate rumours that key members of the trade union had withdrawn their membership or cooperated with the company. This effort led more than 150 members to withdraw trade union membership.
5. 322. Discrimination against the trade union can be seen to a greater extent in the company’s refusal to honour seniority with regard to flight training for new aeroplanes. Pilots are usually trained to operate new aeroplanes in order of seniority. However, following the trade union’s industrial action “work-to-rule”, all flight training was cancelled. When the school was later re-opened, the company excluded all trade union members, independently of their seniority, from participating in flight training. The trade union presented this complaint to the company, but no action has been taken.
6. 323. In view of the loss of so many pilots, the company was, and is still, in desperate need of pilots. Since the company does not wish to ease the pressure exerted on the trade union, it is contracting non-unionized pilots from Peru or Ecuador, amongst other countries, and in many cases to the full knowledge, and with the consent, of the Civil Aviation Authorities (DGAC) and the Government of Chile.
7. 324. Lan Chile is starting to offer dismissed pilots with reinstatement in an effort to ensure adequate staffing levels during the next period of heavy air traffic. However, reinstatement comes at a very high cost. Former trade union pilots wishing to return must write a letter by their own hand in which they accept individual responsibility for any damage that may have been caused during the industrial action, “work-to-rule” and state that the trade union told them to participate in this action. When a pilot is reemployed by the company, or one of the subsidiaries, he is not covered by the existing collective agreement but by an individual employment contract.
8. 325. To date, nearly 300 of the 400 trade union members no longer work for the company or were pressurized in withdrawing their membership, or persuaded to do so; the number of members went from 420 to 114. Furthermore, the company initiated legal action for harassment against one of the directors of the trade union just before negotiations began. A company representative announced a second case of legal action, but this has still not been presented. The pilots dismissed illegally have initiated legal proceedings against the company demanding their reinstatement. It is estimated that a decision on this issue will take more than two years.
9. 326. The complainant organization points out that the reported events describe a campaign aimed at breaking up the trade union.

B. The Government’s reply

1. 327. In its communication of 31 July 2002, the Government explains that during the second semester of 2001, in the months prior to the expiry of the collective agreement for pilots and technicians, a climate began to develop that was hardly suitable for the negotiations planned for October of that year between Lan Chile S.A. and the Trade Union of Pilots and Technicians of Lan Chile S.A. It should be noted that this situation developed following the attack and destruction of the Twin Towers in the United States, and that this incident obviously had an effect on some of the events denounced by the trade union, but does not provide a single or sufficient explanation.
2. 328. The Government then lists a series of events which, as it points out, constitute anti-union practices.
   • Individual bargaining between the enterprise and pilots
3. 329. During the second quarter of 2001, the enterprise created subsidiary enterprises to which some unionized pilots were transferred following individual bargaining, which provided them with access to improved financial conditions, and their withdrawal of trade union membership. This process was public knowledge and was even encouraged by company executives.
   • Publicity campaign against collective bargaining
4. 330. The atmosphere being experienced within Lan Chile S.A. was made known to the public through articles in the press that appeared repeatedly from August 2001 onwards. These articles pointed out that the collective bargaining process to be carried out by the pilots was a threat to the entreprise and to the country’s economy given that the bargaining appeared to be intrinsically linked to conflicts and paralysis. These conclusions stem from articles that appeared in the “El Mercurio” newspaper during August 2001.
5. 331. In a public notice, the trade union’s executive board qualified these articles in the press as a campaign against the trade union in order to discredit the workers’ organization and discourage collective bargaining by generating a negative public opinion. The trade union responded by implementing the industrial action entitled “work-to-rule”, consisting in fulfilling the provisions of aeronautical regulations to the letter. This obviously involved the non-infringement of applicable standards, but also involved straying from the usual practices employed by the enterprise in air navigation processes, and which are outside the regulations, in order to cut costs for fuel and other consumables.
   • Mass dismissal of active trade union members
6. 332. These events were followed by the mass dismissal of unionized pilots. Between 14 September and 4 October 2001, the company dismissed 108 members. In 23 of these cases the company invoked “company requirements” as the reason for the dismissals and in 85 cases it invoked the “serious breach of contractual obligations”. When the enterprise describes the serious breach of contractual obligations, it refers, inter alia, to confusing situations which led to delays for some flights. However, there is no clear relationship between the delays and the breach of contracts or internal regulations.
7. 333. Following the dismissal of these 85 workers, the company reinstated 40 of them. Amongst those not reinstated were eight former trade union directors and workers who participated in the 1995 legal strike. Therefore, the measure was highly discriminatory given that, in essence, it affected the most active members of the organization, namely those who were dismissed for respecting a trade union agreement consisting in “work-to-rule”, without violating contractual or legal standards.
8. 334. The 37 workers affected filed a motion to vacate the dismissals before the Fifth Labour Court of First Instance of Santiago, filed under “Bustamante and Others versus Lan Chile S.A.” (Case No. 5196-2000).
   • Reduction in the workers’ negotiating power
9. 335. The dismissals prior to the commencement of collective bargaining had repercussions on the collective bargaining process promoted by the trade union in that only 111 members participated. This represents a 200 per cent reduction in the number of participants compared with the previous collective bargaining process. The process was concluded without a strike and a four-year collective agreement was signed, with a 56 per cent reduction in the pay increase that otherwise would have been due. At the same time, the entreprise came to an agreement with three groups of pilots, who during the previous negotiation process formed part of the trade union, in the form of 62-month collective agreements with a lower pay adjustment.
   • Pressure exerted by Lan Chile S.A. for the
   • withdrawal of trade union membership
10. 336. Following inspections by the employment services during the course of 2001, it was established that unionized pilots and technicians were subjected to intense pressure aimed at making them withdraw membership from their trade union organization. This is shown in documents and communications issued by the employer which offer improved conditions of work that are incompatible with continued trade union membership. This approach was also reflected in the implicit threats of dismissal that were made by some supervisors and acknowledged by some workers during conversations with the officer from the Labour Inspectorate. As a result, the trade union executive board received membership withdrawals from mid-2001 until the first-quarter of 2002; it currently has only 71 members.
    • Discrimination against trade union
    • members with regard to training
11. 337. Lan Chile S.A. excluded trade union members from flight training for operating the new company airplanes. This was subsequently taken up by the trade union executive board with the employer, but this measure was not reversed. In the past, training was considered a recompense for pilots’ seniority. According to the information collected during the inspections conducted in the enterprise, such exclusion became apparent shortly before the collective bargaining process began. According to the information provided by the trade union executive board, this segregation still continues during the present year.
    • Conditions for the reinstatement of dismissed pilots
12. 338. According to the information collected during the inspections conducted in the company in 2001, 40 pilots dismissed for disciplinary reasons, for having participated in the action entitled “work-to-rule”, were reinstated by the employer with the condition that they write a letter in which they had to acknowledge responsibility for the possible damage the industrial action may have caused; furthermore, they had to blame the trade union for forcing them into the alleged transgression. With their new individual contracts, these pilots did not regain the collective benefits that they had previously enjoyed.
    • Replacement of dismissed unionized pilots
    • by recruiting foreign pilots
13. 339. The company failed to comply when requested for information by the inspectors in order to determine the legality of such recruitment. As a result of this conduct, the enterprise was fined on three occasions, on the most recent occasion, it was given the maximum administrative sanction for hindering the labour inspector’s work.
    • Harassment of trade union officials: Failure to grant the
    • work agreed upon and professional disqualification
14. 340. In August 2001, a complaint was made about the suspension from everyday duties of the trade union directors, Messrs. Nibaldo Jorquera and Artidoro Leal, and Lan Chile S.A. was sanctioned for failing to grant the work agreed upon in the employment contract. This also happened to the official Baldovino Bendix.
15. 341. This conduct began to take the form of excluding trade union officials from work schedules, which are documents used to notify each pilot of his flight itinerary, rest periods, training activities and other events for the following month. The collective agreement obliges the employer to provide this document.
16. 342. In January 2002, another administrative fine was issued for failing to provide the officials Jozcef Szita, Artidoro Leal, Nibaldo Jorquera and Baldovino Bendix with work schedules and for failing to grant the first two mentioned officials the agreed upon work.
17. 343. It should be pointed out that, according to the provisions of the Civil Aeronautical Authority, in order to keep their license, pilots must be accredited with a determined number of flight hours. Without such a license they cannot work as pilots or co-pilots. In practice this amounts to professional disqualification and makes it impossible for them to work for this, or another, aviation company since they fail to meet the essential requirements.
18. 344. Moreover, the Government indicates the effects of the action taken by Lan Chile S.A. which constitutes anti-union and unfair practices in collective bargaining:
    • – Trade union membership. After having been the most representative union and bringing together nearly all of the pilots and technicians at Lan Chile S.A., with 400 members, the Trade Union of Pilots and Technicians now has only 71 members, as a result of the dismissals, membership withdrawals and creation of subsidiary enterprises.
    • – Trade union executive board. In October 2001, the trade union executive board was composed of five members. In the first-quarter of 2002, only one director remained in service since three officials left the company, in one case following legal proceedings which lead to an agreement, and in the other cases following out-of-court negotiations. The last reorganization of the executive board, on 16 May 2001, only enabled the election of three directors.
    • – Trade union assets. In view of the reduction in membership, the trade union stopped receiving a significant amount of resources, in the form of trade union dues. Therefore, the trade union was forced to move to smaller headquarters and reduce the number of officers and advisers.
    • – Collective bargaining. The collective bargaining of pilots, which until 2001 had been carried out exclusively by the Trade Union of Pilots and Technicians, was significantly fragmented during the last negotiating process, and therefore led to fewer collective benefits. Moreover, by negotiating separately, three groups signed instruments for 62 months, whereas the trade union did so for 48 months. Thus, during future negotiations, the pilots of Lan Chile S.A. will not be able to bargain collectively in the regulated manner or at the same time, and therefore, they will not be able to negotiate with their counterpart on an equal footing given that action, such as strikes, will be very difficult to sustain in this context.
    • – Mass dismissal of pilots. The case in which 37 pilots are requesting a motion to vacate dismissals, before the Fifth Labour Court of First Instance of Santiago, filed under “Bustamante and Others versus Lan Chile S.A.” (Case No. 5196-2000), is in the evidentiary stage. Undoubtedly, the most marked event in this case, owing to its seriousness and the number of workers affected, is the mass dismissal of members. The reasons given for these dismissals by the company are not connected to the global setback in civil aviation following the events of 11 September 2001. The strategy developed by the company prior to the collective bargaining process with the aim of weakening the trade union actor with which it had to negotiate, shows that internal factors were the cause. The use of this strategy weakened the trade union, decreased the workers’ negotiating prospects and was of serious detriment to those workers who were disqualified from carrying out their profession. Furthermore, this strategy devastated the trade union organization, clearing the way for the company to exert its power without an appropriate counterweight, which, before these events, had been provided by the Trade Union of Pilots and Technicians as a strong and independent trade union organization capable of establishing the counterbalance required in labour relations.
19. 345. Lastly, the Government declares that the conduct by Lan Chile S.A. aimed at making pilots renounce withdraw trade union membership is covered fully in the stipulations of article 291, paragraph (a) of the Labour Code, which states:
    • Article 291. The following persons, in particular, are guilty of committing a violation of freedom of association:
      • (a) Those who exert physical or moral force on workers in order to obtain their trade union membership, or membership withdrawal, or so that a worker abstains from belonging to a trade union, and those who similarly stop a worker from promoting the establishment of a trade union organization, or oblige him to do so.
    • Therefore, the trade union should file a complaint for anti-union practices against Lan Chile S.A. before the labour courts. For the information of the Committee on Freedom of Association, the Government attached a copy of a recent ruling, which recognizes the validity of ILO Conventions Nos. 87 and 98, accepts the complaint made by a trade union for anti-union practices in its enterprise and sentences the enterprise in question to pay a fine to the National Training and Employment Service (SENCE).

C. The Committee’s conclusions

1. 346. The Committee decided to present an interim report on this case, considering that information was lacking. In particular, the Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprise concerned, on the questions at issue. The Committee will then re-examine this case taking into account the information received.
2. 347. The Committee observes that in this case the complainant alleges that Lan Chile S.A. conducted a campaign to break up its organization, which began in 2001, and which took the form of a series of illegal practices of anti-union discrimination, above all in connection with negotiations aimed at concluding a new collective agreement. According to the complainant, these practices include a publicity campaign against the trade union, the mass dismissal of unionized pilots, threats of dismissal, pressure exerted on pilots and their family members so that the former withdraw union membership, discrimination against union members with regard to training, the recruitment of dismissed pilots in subsidiary enterprises under anti-union conditions (the acceptance of individual responsibility for the industrial action entitled “work-to-rule”, a statement that the trade union ordered them to participate in this action and agreement to be covered by individual employment contracts rather than the collective agreement), and the harassment of a trade union official.
3. 348. The Committee notes the statements made by the Government which confirm the allegations, qualify the alleged events as anti-union practices and even include (given that the Government’s reply came six months after the allegations) more recent events contrary to trade union rights. Generally speaking, the Committee emphasizes the seriousness of the allegations, which have been confirmed by the Government, and expresses its deep concern in view of the number, and nature, of the anti-union practices which were discriminatory or contrary to collective bargaining, and resulted in trade union membership dropping from 400 to 71.
4. 349. More specifically, the Committee notes the statements made by the Government in which it states that:
   • – the action entitled “work-to-rule” taken by the trade union consisted in fulfilling the provisions of aeronautical regulations to the letter, which obviously did not involve the infringement of applicable standards; no contractual or legal standards were violated;
   • – between 14 September and 4 October 2001, the enterprise dismissed 108 trade union members. In 23 of these cases, the enterprise invoked “company requirements” and in 85 cases it involved a “serious breach of contractual obligations”. However, in these 85 cases, there is a clear relationship between the delays and the breaches in contractual obligations (or internal regulations). Following the dismissal of these 85 workers, the company reinstated 40 and amongst those not reinstated were eight former trade union directors and workers who participated in the 1995 legal strike. Therefore, the measure was highly discriminatory given that, in essence, it affected the most active members of the organization, namely those who were dismissed for respecting a trade union agreement consisting in “work-to-rule”, without violating contractual or legal standards. Three of the five members of the trade union executive board left the company following legal proceedings (which lead to an agreement or out-of-court negotiations). Thirty-seven pilots affected filed a request to vacate the dismissals before the Fifth Labour Court of First Instance of Santiago;
   • – the dismissals reduced the negotiating power of the workers (participants decreased by 200 per cent compared with the previous collective bargaining process) and while the enterprise signed a new collective agreement, it also came to an agreement with three groups of pilots that had formed part of the trade union. The collective agreement with the trade union was for four years (48 months) with a 56 per cent reduction in the pay increase that otherwise would have been due, whereas the collective agreements with the groups of workers were for 62 months and a lower pay adjustment. Therefore, the pilots will not be able to bargain collectively at the same time and a strike will be very difficult to sustain in this context;
   • – it has been established that unionized pilots and technicians were subjected to intense pressure aimed at making them withdraw trade union membership. This is shown in documents and communications issued by the employer which offer improved conditions of work that are incompatible with continued trade union membership. This approach was also reflected in the explicit threats of dismissal that were made by some supervisors and acknowledged by some workers during conversations with the officer from the Labour Inspectorate. The trade union can legally file a complaint before the courts for these events and have the company fined;
   • – according to the inspections conducted within the enterprise, the latter excluded trade union members from flight training for operating new company aeroplanes;
5. – 40 pilots dismissed for having participated in the “work-to-rule” action were reinstated with the condition that they write a letter in which they had to acknowledge responsibility for the possible damage the industrial action may have caused, as well as blame the trade union for forcing them into the alleged transgression. In their new individual contracts, these pilots did not regain the collective benefits that they had previously enjoyed;
   • – the administrative authority fined the enterprise on two occasions for failing to grant the work agreed upon in the employment contract or for failing to provide four trade union officials with their work schedules (to keep their licence, pilots must be accredited with a specific number of flight hours, and the inability to do so amounts, in practice, to professional disqualification).
6. 350. As regards the allegations relating to acts of anti-union discrimination (mass dismissal for conducting trade union activities, pressure exerted on pilots and their family members in order that the former withdraw their trade union membership, the exclusion of trade union members from training for operating new aeroplanes, the failure to grant the work agreed upon in the employment contracts of trade union officials and the reinstatement of more than half of those dismissed under anti-union conditions), the Committee notes that the Government confirms these allegations, that more than half of those dismissed were reinstated and that three came to an agreement within the framework of legal proceedings. The Committee notes that the Government also suggests that the pressure exerted by the enterprise so that pilots withdraw trade union membership could lead to legal proceedings in which the company could be given a punitive fine for anti-union practices. The Committee also notes that the acts of harassment against four trade union officials (failure to grant work) were sanctioned on two occasions with a fine imposed by the administrative authority.
7. 351. The Committee deeply deplores all of the anti-union practices described and highlights that no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 690], and that protection against anti-union discrimination should apply more particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside the workplace or, with the employer’s consent, during working hours [see Digest, op. cit., para. 694]. Furthermore, no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696] and legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98 [see Digest, op. cit., para. 697]. To this effect, respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 741].
8. 352. In the present case, the Committee highlights the importance that the discriminatory practices suffered by the complainant organization and its members be rectified and sanctioned without delay, and notes with concern that, according to the complainant organization, the proceedings relating to the dismissal of pilots will take more than two years.
9. 353. The Committee requests the Government to keep it informed of the result of legal proceedings that are currently in course or that will intervene by reason of the previously mentioned anti-union dismissals and practices and expects that dissuasive and effective sanctions, along with compensatory measures, will be imposed without delay in order to put a stop to the enterprise’s anti-union practices in the future. The Committee requests the Government to initiate discussions with a view to the possible reinstatement of the 37 pilots who have taken legal action to oppose their dismissal.
10. 354. With regard to the allegations that the enterprise bargained with individual pilots for anti-union purposes, the Committee observes that the Government confirms this individual bargaining and also refers to bargaining with groups of pilots for anti-union purposes and in order to prevent pilots from bargaining collectively in a simultaneous manner in the future. The Committee emphasizes that the Collective Agreements Recommendation, 1951 (No. 91), provides that for the purpose of this Recommendation, the term ‘collective agreements’ means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more representative workers’ organizations, or, in the absence of such organizations, the representatives of the workers duly elected and authorized by them in accordance with national laws and regulations, on the other. In this respect, the Committee emphasized that the said Recommendation stresses the role of workers’ organizations as one of the parties in collective bargaining. Direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest, op. cit., para. 786]. Furthermore, the Committee recalls that in one previous case it found it difficult to reconcile the equal status given in the law to individual and collective contracts with the ILO principles on collective bargaining, according to which the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations should be encouraged and promoted, with a view to the regulation of terms and conditions of employment by means of collective agreements. In effect, it seemed that the Act allowed collective bargaining by means of collective agreements, along with other alternatives, rather than promoting and encouraging it [see Digest, op. cit., para. 911].
11. 355. Therefore, the Committee requests the Government to take measures to prevent Lan Chile S.A. from bargaining for anti-union purposes with individual pilots or non-unionized groups of pilots, and to keep it informed of legal action that may be initiated with regard to such practices.