Informe provisional - Informe núm. 354, Junio 2009

1. 305. The complaint is contained in a communication from the Confederation of Copper Workers (CTC) and the Single Central Organization of Workers (CUT) of November 2007. The CTC subsequently sent new allegations in a communication of November 2008.
2. 306. The Government sent its observations in communications of January and February 2009.
3. 307. Chile has ratified the Freedom of Association and Protection of the Right to Organise 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 complainants’ allegations

1. 308. In their communication of November 2007, the CTC and the CUT state that workers belonging to the CTC are those workers in a subordinate and dependent relationship with the state enterprise CODELCO, which originated from the promulgation of the constitutional reform nationalizing copper in July 1971. The National Copper Corporation of Chile, as it is now known, was established by a decree of 1 April 1976 and is the largest state enterprise in Chile. Approximately 400 contracting enterprises subcontract some 30,000 workers who fulfil permanent and temporary roles for the main enterprise, CODELCO Chile.
2. 309. The CTC is a properly constituted trade union organization that has enjoyed legal personality since its by-laws were deposited with the Labour Inspectorate. It is composed of trade union organizations such as federations and primary organizations, all of which freely adopt their own by-laws and proceed to elect trade union leaders. The CTC maintained that it was necessary for CODELCO to listen and respond to workers’ labour complaints, but its efforts proved useless. The workers it represents therefore voted on and approved legal strike action on 25 June 2007, which was extended until 1 August 2007. During the strike, the State took severe action against freedom of association.
3. 310. The complainants state that during collective bargaining, actions were identified on the part of the state enterprise CODELCO and the State of Chile itself, through its agents, that constituted anti-union or unfair practices. Illegal arrests, detention, excessive use of public force, trespass, breach of private communications and, in general, infringement of fundamental rights, both labour-related and general, all occurred. The state apparatus behaved excessively throughout towards workers who were struggling to improve their working conditions.
4. 311. The CTC denounced the Chilean national police for the excessive force used in suppressing demonstrations by workers outside the Office of the Public Prosecutor for Los Andes. To date, however, no reply has been received, no investigation is under way, no legal proceedings have been brought, and no one has been charged, despite the following serious complaints having been made: (1) house searches on the verbal orders of a supervisory judge. A group of police officers entered the home of a worker belonging to the CTC and proceeded to use unnecessary force to break furniture and other items in the worker’s home, remaining there for more than an hour; and (2) complaints that workers belonging to the CTC who were legitimately exercising their rights, as guaranteed in the Constitution and in law, were suppressed by the national police, who used force in an unnecessary manner in suppressing the workers, despite the fact that they were withdrawing peacefully from the area.
5. 312. During this suppression of workers, some 40 workers were detained. The local Office of the Public Prosecutor later released all the workers because it considered that there were no grounds for bringing them before the Supervisory Court. In addition, three workers were injured. They were taken to the local hospital, where the injuries suffered were identified as direct consequences of the illegal action of the national police on the day of the events.
6. 313. The state enterprise made use of the measures granted to it by the State itself to break up the movement, for example by falsely making it seem as if the dispute had been concluded, when in fact it had simply invented pseudo-negotiations with another group of subcontracted workers, with whom it was alleged to have reached an agreement. The complainants state that that group of workers never negotiated with the state enterprise, nor did they ever declare or take strike action or join the CTC’s strike. This amounted to an act of bad faith that substantially influenced the course of negotiations taking place at the time and made it seem, including to workers, that the dispute was over. The media immediately broadcast that fact, generating confusion within and outside the CTC. It has been established in national judicial jurisprudence that the spreading of untruthful information during the collective bargaining process that influences the outcome of collective bargaining constitutes an act of bad faith that obstructs collective bargaining.
7. 314. The complainants allege that workers, especially trade union directors from the confederation, federations and primary unions affiliated to the CTC, have been directly and indirectly prevented from entering their workplaces. Direct prevention has occurred through the dismissal of workers who exercised their right to strike. Threats of dismissal were also made against all workers who had participated in collective bargaining.
8. 315. Indirect prevention was undertaken through the agents of the State, i.e. the police, criminal prosecutors and the criminal courts, which acted together, even violating fundamental rights such as honour, privacy and the inviolability of private communications, with the intention of criminalizing the strike and its leaders. Repressive state apparatus, such as the national police, actually entered members’ homes and, furthermore, with authorization from the criminal courts, proceeded to search homes, persecute workers and union leaders and intercept calls on mobile and fixed telephone lines in criminal cases which the Public Ministry itself later decided not to pursue. This is of vital importance as it illustrates that the actions of these bodies were not motivated by legal proceedings but, quite the contrary, were intended solely to intimidate workers and leaders and to break up the trade union organization. The complainants state that a specific example of this occurred in the Los Andes Division, where the Criminal Supervisory Court, at the request of the Public Ministry, gave a verbal authorization to the police to search the home of one member, where picketers were supposed to be in hiding. On that occasion, the national police entered and remained in the dwelling for more than two hours, destroying everything in their path, arresting two workers on the evidence of three stones which were meant to have been found in the house they searched and which the Public Ministry subsequently used to charge the workers with offences dreamt up by the prosecutor. The Supervisory Court, presided over by the same judge who had issued the verbal instruction, and based solely on the evidence of the “three stones”, requested immediate proceedings for public disorder against one of the workers arrested at the house, but, when the time came for the hearing, the proceedings were dropped, which demonstrates that the sole purpose was to intimidate workers so that they would stop pursuing their legitimate demands.
9. 316. The State of Chile has behaved in a manner which threatens freedom of association. The Government stated, after scant consideration and decision-making, that the dispute should be resolved by the subcontracting enterprises with those workers who belong to the CTC and that the state enterprise CODELCO is autonomous in its decision-making.
10. 317. The complainants report that the state enterprise and the contracting and subcontracting enterprises are organized through a conglomerate, holding or economic unit which, in accordance with the provisions of section 3 of the Labour Code, constitutes an enterprise for employment purposes. This is the case for several reasons: (a) the state enterprise CODELCO occupies a dominant position over the contracting and subcontracting enterprises, to the point that it constitutes a monopoly position that cannot be reversed by the contracting and subcontracting enterprises; and (b) formally subcontracted workers fulfil the same roles as workers contracted directly by CODELCO.
11. 318. The subcontracted workers fulfil permanent roles in the main enterprise and it is the main enterprise that issues orders, meaning that the subordinate and dependent relationship is definitely with the state enterprise and not with the contracting or subcontracting enterprises. These enterprises would hardly be able to impose their decisions on the management of workers and their enterprises if they were in fact puppet enterprises controlled by the state enterprise. By simulating contracting, the existence of an economic unit can be observed. It is the state enterprise itself that appoints contracting and subcontracting enterprises to contract workers and make them available to the state enterprise to fulfil their respective functions.
12. 319. On 1 August 2007, the state enterprise CODELCO and the subcontracting enterprises signed the Framework Agreement between CODELCO Chile, contracting enterprises and the CTC. This instrument sets out a series of obligations on the state enterprise, among which are: payment of a bonus equivalent to US$450,000 to the benefit of all contracting workers working for CODELCO Chile; payment of eight days’ wages for the days of the strike, an amount of US$50,000 for the remaining days and the provision of wage advances to cover the remaining strike days; the reinstatement of workers dismissed for having participated in the legal strike; and a commitment to refrain from dismissals in reprisal for the strike. The complainants state that the state enterprise has not fully complied with these obligations. Even after the strike, the state enterprise has continued to behave in a manner that constitutes anti-union practice, specifically:
    • – contracting workers are excluded from the benefits obtained, which contradicts the letter and spirit of the Agreement, which was negotiated at all times on behalf of all contracting workers;
    • – economic benefits have been paid first to workers not participating in the strike and payments to workers currently on strike have been delayed without cause. This was intended to encourage workers to leave the CTC;
    • – at present there are a significant number of workers who have not received any economic benefit. These workers mostly belong to highly mobilized groups, which clearly constitutes an act of reprisal against them;
    • – the wage benefits intended to cover the unpaid strike days have not been paid. This again applies to the most active workers, given that the rest have been paid all their wages, without such discrimination having any just cause;
    • – the reinstatement of a significant number of workers, those who were most active in the strike, has not taken place;
    • – with the aim of avoiding intervention by the Labour Directorate under the Subcontracting Act, once the strike had finished and the workers returned to work, their duties were changed on the pretext of complying with the law.
13. 320. Lastly, the complainants allege that the State has also failed to take charge of the labour dispute, which it could and should do through the National Labour Directorate in the following manner: (1) the labour inspectorate has the legal obligation to report any actions that constitute anti-union practices to the labour courts. Actions constituting anti-union practices have been described but, nevertheless, the labour inspectorate has not reported them; (2) the Labour Directorate offers a mediation system that aims to promote the resolution of collective labour disputes. In the dispute described, there was never the definite possibility of an offer of mediation by the Labour Directorate; and (3) violations of the Subcontracting Act No. 20123 have been reported but to date no information has been received of any investigation reports.
14. 321. According to the complainants, there has been a violation of the 1980 Constitution, which stipulates that all workers may declare a strike with the exception of civil servants employed by the state or municipalities, together with any persons employed in corporations or enterprises, whatever their nature, purpose or function, that provide public utility services or services whose stoppage would cause serious damage to health, the country’s economy, public supply or national security. In addition, there have been violations of ILO Conventions Nos 87 and 98 and the Labour Code.
15. 322. In its communication of November 2008, the CTC states that, once the Framework Agreement reached between CODELCO Chile, its contracting enterprises and the CTC had been signed, another series of anti-union practices began against the confederation, which took the form of persecution and harassment against union leaders and failure to pay the benefits set out in the Framework Agreement. This compliance failure was used by CODELCO Chile as a mechanism to destroy the confederation, based on the fact that it maintained in public that it had fully complied with its obligations, but in practice none of them were undertaken. CODELCO thus attempted to undermine relations with the primary organizations, who could not understand how the state enterprise could be broadcasting the fact that it was fully complying with the Framework Agreement while at the same time they were not receiving the benefits provided for therein.
16. 323. The CTC alleges that the contracting enterprises, threatened with losing their contracts with the state enterprise, took coordinated action to discredit and persecute the CTC. So, there was a resurgence in blacklisting, which was intended to impede the recruitment of workers linked to the confederation and, furthermore, to provoke the dismissal of those who still had contracts in force with any of these contracting enterprises. This was basically carried out by bringing legal actions to impede the functioning of the Confederation and to secure the removal of its various leaders.
17. 324. The CTC also alleges that requests for removals were made. CODELCO Chile coordinated with its contracting enterprises in order to request the removal of certain union leaders representing various divisions, with the aim of undermining representation at primary level. In this regard, requests were made to remove Mr Emilio Zárate Otárola, Mr Patricio Rocco Bucarey, the national director of the confederation, Mr Luis Garrido Garrido, Mr Patricio Alejandro García Barahona, Mr Ramón Segundo Salazar Vergara, Ms Viviana Andrea Abud Flores and Mr Juan Francisco González Bugueño.
18. 325. The CTC alleges that blacklisting is being used to impede access to workplaces by some leaders (as in the case of Mr Andrés Leal Alavarado, national director of the CTC, and Mr Alvaro Guajardo in the holding division of CODELCO) and that there is a prohibition on giving work to others (as in the case of Mr Cristian Cuevas Zambrano, national president of the confederation, who has been obstructed and denied access to work since 2004, and Mr Jorge Peña Maturana, national director of the CTC, who has been obstructed and denied access to work since 2003).
19. 326. In addition to the above, the state enterprise has introduced an entire procedure designed to avoid applying the Subcontracting Act.

B. The Government’s reply

1. 327. In its communication of January 2009, the Government states that it has consulted CODELCO, the National Labour Directorate, the national police and the Office of the Public Prosecutor. The Government recalls the complainants’ statement that, given that CODELCO had not heeded the labour demands of the CTC, a strike was approved and took place. During the strike, according to the complainants, the state authorities are supposed to have carried out repressive actions in the form of illegal arrests, detention, excessive use of force and, in general, deprivation of fundamental rights, both general and labour-related. In this context, when the Secretariat-General of the national police was consulted by letter No. 737 of May 2008, it stated, in a report dated 26 May 2008, that, according to information obtained by the National Directorate for Security and Public Order of the National Police, no police procedures were identified which would have involved officers of the national police entering and searching trade union premises. For their part, on 4 July 2007, with prior verbal authorization from the supervisory judge for Los Andes, institutional personnel entered and searched the property belonging to Mr Cristian Patricio Cabezas Carrasco, with the intention of arresting suspects Mr Juan Carlos Miranda Zamora and Mr Francisco Javier Díaz Herrera, both accused by witnesses of committing the offence of attacking a moving vehicle, resulting in damage, as provided for in section 196(h) of Traffic Act No. 18290, in respect of bus PP-YU-4589, driven by Mr Rodrigo Antonio Pereira Lazcano, who was transporting workers who were on the way to pursue their usual duties at the mining site, the facts of which were communicated to the local Office of the Public Prosecutor for Los Andes in report No. 2343 of 4 July 2008.
2. 328. The Government states that, during collective bargaining and work stoppages, it is public knowledge that, in certain areas of the country, serious disruption of public order and damage to public and private property have been seen. These unlawful acts have prompted intervention by officers of the national police, with the aim of restoring the rule of law, leading to the arrests of some workers and union leaders. Individual reports of these events were produced describing actions that obstructed the normal ingress of workers and vehicles, stone throwing that resulted in injuries, cuts in the electricity supply, attacks on items belonging to fire-fighters that resulted in damage, threats against contracting workers who wanted to go about their normal duties and countless other actions which, given their severity and magnitude, warranted the intervention of officers of the national police.
3. 329. The Political Constitution of the Republic of Chile gives constitutional rank to the Armed Forces of Order and Security. Article 90 thereof states that “they consist solely of the national police and investigations police. They represent public force and they exist to enforce the law and guarantee public order and domestic public security, in the manner determined by their respective organic laws. The national police shall also form part of the armed forces, with the mission of guaranteeing institutional order in the Republic”. Furthermore, article 19, paragraph 26 of the Fundamental Charter guarantees “the assurance that the legal precepts which, mandated by the Constitution, regulate or complement the guarantees it provides, or limits them in those cases which authorized therein, shall not affect the essence of those rights, nor impose conditions, taxes or requirements that impede the free exercise thereof”.
4. 330. Furthermore, fundamental labour rights, respect for and exercise of which are guaranteed by the Chilean Constitution, as well as by international treaties ratified by Chile and incorporated into domestic legislation, must exist in harmony with other fundamental rights, which justifies the intervention by the national police. This intervention was not in any way intended to repress or affect the essence of the fundamental rights of the organization but, on the contrary, to guarantee fuller exercise of the rights of workers in all spheres, with full respect for the other guarantees enshrined in Chile’s Fundamental Charter.
5. 331. As regards the allegation concerning the “obstruction of collective bargaining” by simulating pseudo-negotiations, CODELCO, in a report requested by the Ministry of Labour and Social Security, states that “with respect to the accusation of bad faith, it should be noted that, despite there existing no employment relationship at all between the subcontracting workers and CODELCO, for which reason the enterprise is under no obligation whatsoever to negotiate with them, the Government of Chile and CODELCO, having respect for freedom of association, facilitated meetings between the parties, using dialogue, cooperation, good faith and equity as problem-solving tools”. Similarly, the Republic of Chile’s domestic labour legislation does not in any way contravene international labour standards, nor the spirit thereof.
6. 332. With regard to the allegation that workers were directly prevented from entering their workplaces by means of their dismissal, CODELCO states that it had no opportunity or authority to undertake any of the actions described in the complaint, as it neither had nor has such powers. For its part, the National Labour Directorate has reported that the demonstrations were not carried out within the framework of collective bargaining under the country’s Labour Code, and it was therefore not its responsibility to assume any of the roles it plays in such processes.
7. 333. Concerning the alleged indirect prevention or omissions by the State and its representatives, it should be noted that domestic legislation, by virtue of section 476 of the Labour Code, stipulates that overseeing the application of labour legislation is the responsibility of the Labour Directorate and states that “it is a decentralized public service, with legal personality and private property, which is subject to the supervision of the President of the Republic through the Ministry of Labour and Social Security” (Decree with Force of Law No. 2 of 1967, Organic Law on the Labour Directorate). Bearing in mind the above, and in compliance with current legal standards in the field of labour, legislation calls on the Labour Directorate to intervene in such circumstances. The active intervention of the Directorate in question is outlined in report No. 4368 of 2008.
8. 334. Furthermore, it should be pointed out that the State of Chile has legislation on collective bargaining and freedom of association, the fruit of arduous legislative work over many years, which contains a series of reforms designed to strengthen freedom of association and the exercise of the right to strike, an effort which the Government of Chile has pursued since the early 1990s. Act No. 19759 of 2001 definitively abolished those collective agreements that could be imposed by an employer, such that, in Chile, collective agreements can only be reached by a trade union or with a group of workers having a minimum level of organization. Certainly the regulations could be perfected, the more so if there remains a need for improvements stemming from recommendations made by the ILO supervisory bodies regarding certain important areas. In this regard, there is a presidential commitment to table a draft Act on improving the process of collective bargaining, taking into account the recommendations made by the ILO.
9. 335. With regard to “mediation systems”, the Labour Directorate, in a report requested on the subject, clarifies that it has formal mediation facilities, staffed by professionals dedicated exclusively to the service, which can be initiated at the request of parties and which are essentially voluntary. In this case, no requests to this effect were received.
10. 336. In its communication of February 2009, the Government states that, taking fully into consideration the additions to the complaint made by the CTC and the accompanying observations from CODELCO, requested by the Government of Chile in letter No. 0017 of 20 January 2009, it has the following observations to make.
11. 337. With regard to the alleged contravention of the signed “Framework Agreement”, it must be clarified that, without prejudice to the statements made by the CTC in its written submission adding to its complaint, CODELCO, in a report requested on the issue, declares that “the contractors have complied with this manual of good practice in a full and satisfactory manner”.
12. 338. Given that contradictory statements have been made by CODELCO and workers for the contracting enterprises concerning the status of compliance with this Framework Agreement, and in the event that the declarations made by the complainant on this point are true, it does not follow that CODELCO should be accused of anti-union practices, as the employer, because it is not the employer of the complainant workers. In fact, work under a subcontracting arrangement is “that carried out under a contract of employment by a worker for an employer, termed the contractor or subcontractor, when, as a result of a contractual agreement, it undertakes to provide labour or services, on its own account, at its own risk and with workers dependent upon it, for a third natural or legal person directing the work, enterprise or service”.
13. 339. As can be seen from the above provision, an employment relationship in the legal arrangement of subcontracting exists only between a worker and the contracting or subcontracting employer. In this case, CODELCO has the status of “main enterprise” or “third natural or legal person directing the work, enterprise or service”, as stated in the last part of section 183-A, second paragraph, of the Chilean Labour Code, for which reason CODELCO does not have any legal employment relationship with workers in the respective contracting and subcontracting enterprises, but only a civil relationship arising from a “contractual agreement”.
14. 340. This does not prevent CODELCO, as a party to and important component of the production process carried out jointly by CODELCO, its contractors and subcontractors, from promoting and monitoring the status of the manual of good practice (Framework Agreement) mentioned above, bearing in mind the civil relationship that exists with the contracting and subcontracting enterprises. This is precisely what happened in the signing of the so-called “Framework Agreement”. CODELCO, in the hope of contributing to the resolution of the dispute affecting its contracting enterprises and their workers, signed the document, which clearly sets out guidelines of a general nature for these enterprises. CODELCO, despite having an interest in the issue, is subject to obvious limitations as regards interfering in the definitions used in the human resources policies of contracting enterprises.
15. 341. With respect to the situation described in the complaint regarding the alleged resurgence of blacklisting at CODELCO, which prevents access to workplaces by some union leaders and also prohibits work from being given to others, the Government shares the view of the Committee on Freedom of Association that “all practices involving the blacklisting of trade union officials constitute a serious threat to the free exercise of trade union rights, and, in general, governments should take stringent measures to combat such practices”. That notwithstanding, there is no evidence to prove that such practices have been introduced by CODELCO. Furthermore, the accusations in question do not correspond with reality, as CODELCO is noted nationally for having almost universal unionization rates among its workers and supervisors.
16. 342. With regard to the alleged refusal by CODELCO to grant persons access to workplaces, it should be stated that, according to a report on the issue by the enterprise, “workers with a contract in force with subcontracting enterprises who are working in industrial areas in the enterprise’s various divisions can enter without restriction in order to fulfil their agreed duties, under the responsibility and oversight of their respective employers”. However, although no employment relationship exists, CODELCO, “in order to safeguard the health and integrity of persons and the security of its facilities, authorizes access to workplaces provided that the corresponding permits are requested from the administration at the appropriate time and with proper grounds”.
17. 343. As will be appreciated, the complainant workers, as workers for subcontracting enterprises, would not have free access to the corporation’s facilities but conditional access to the workplace entrusted to their employer. These measures to restrict access are implemented for the safety and physical integrity of people in mining installations, and in order to comply with regulations on mining safety (Supreme Decree No. 72 of 2004) and Supreme Decree No. 594 of 1999, which approved basic sanitary and environmental conditions for workplaces that apply to the whole of the country’s mining industry and whose aim, naturally, is to prevent risks in mining installations.
18. 344. With regard to requests for removal of union leaders, the procedure has been defined as such by the contracting enterprises for which the individuals concerned work. This procedure is, in essence, a mechanism to protect the worker against possible acts of discrimination by the employer and, as such, is a means of guaranteeing protection of the right to organize. This guarantee arises from section 174 of the Labour Code, which states that “in the case of workers subject to immunity from dismissal, the employer may not terminate a contract without prior authorization from a competent judge, who may allow it in the case of the reasons indicated in paragraphs 4 and 5 of section 159 and those in section 160”.
19. 345. It is for this reason, and with a view to safeguarding the employment stability of this group of workers, for example by preventing the use of anti-union practices through the discriminatory dismissal of workers, that a prior decision must be made by the courts of law, whose independence and impartiality are beyond doubt. Taking such action does not constitute an anti-union act; quite the contrary, it demonstrates a decision to proceed in obtaining prior validating authorization from a competent judge before dismissing a union leader, and the decision will therefore be taken after “due process” in which the parties, on an equal footing, can present their arguments, with the final decision resting in the hands of the judicial authorities. Of course, the legitimate party to initiate removal proceedings is the employer, in this case the contracting enterprises.
20. 346. Consequently, CODELCO cannot be considered to have engaged in anti-union practices in this sense given that, on the one hand, the removal process had been validated with regard to its legal efficiency and effectiveness by the ILO and, on the other hand, this process must be directed by the direct employer in respect of its own workers with immunity, which means that CODELCO, as the main enterprise, is also not responsible for removal actions against workers belonging to the CTC.
21. 347. With regard to CODELCO’s invocation of the resources of protection and amparo (protection of constitutional rights) against the CTC, it should be clarified that the intervention of the judicial authorities in this specific case was considered indispensable by the enterprise in order to ensure guarantees of fair legal proceedings, bearing in mind that the proceedings, in accordance with the principle of interdependence of powers, are required to guarantee respect for, and compliance with, domestic law and international treaties incorporated into legislation, which includes Conventions Nos 87 and 98. This simply reflects the provisions of the Chilean Fundamental Charter, article 76 of which establishes that “the authority to hear civil, criminal and labour cases and to enforce judgements in such cases is vested exclusively in the courts established by law. Neither the President of the Republic nor Congress may exercise judicial functions, express an opinion on matters that are still pending, review the grounds or content of court rulings or reopen lawsuits that have been settled”.
22. 348. Regarding the facts and the case for amparo and protection brought against the CTC, CODELCO states that “as the main enterprise, it was obliged to ensure the safety and physical and psychological integrity of all those working in its installations, whatever their principal employer, and, in consequence of this duty of care, it was obliged to take the appropriate actions as allowed by law and use various means of protection in order to put an end to the illegal and violent strike pursued by the CTC”. The demonstrations in question, which prompted recourse to the courts and whose nature and effects have already been described in the observations previously made by the Government, caused a disturbance and threatened the legitimate exercise of the rights of workers at CODELCO and other enterprises not involved in the dispute. Of course, the operations put at risk by the actions of the CTC are highly complex and require safeguards for security procedures.
23. 349. With regard to the rulings handed down by the higher courts of justice in relation to the simulation of a subcontracting arrangement and the alleged introduction of an entire procedure designed to avoid applying the Subcontracting Act, it should be stated that these rulings were given in the context of the protection proceedings brought by CODELCO against the Labour Directorate which, using its supervisory powers, officially warned the enterprise to directly contract a significant number of workers from contracting enterprises. Section 183.2 of the Subcontracting Act, No. 20123, states, with the aim of avoiding possible acts of simulation by employing enterprises, that “if the services provided are undertaken without being subjected to the requirements set out in the previous paragraph or are solely limited to the subcontracting of workers at a workplace, the employer shall be understood to be the entity in charge of the workers, enterprise or workplace, without prejudice to the appropriate sanctions arising from application of section 478”. This provision, aimed at protecting workers, allocates the burden of proof in the worker’s favour, establishing a legal premise that the employer against which a complaint has been made must provide evidence to the contrary.
24. 350. In this regard, the Labour Directorate ruled that CODELCO should directly contract a specific number of workers from contracting enterprises. CODELCO, questioning the alleged facts as determined by the supervisory body, decided to begin legal proceedings to restrict the actions of the Labour Director. The case brought by CODELCO eventually came before Chile’s Supreme Court, as part of proceedings in which the CTC participated.
25. 351. With regard to the court’s jurisprudence, it should be clarified that Chilean legislation does not accord binding force to rulings given in other cases, so the situation referred to by the complainant in its written complaint, whereby criteria have varied and prior jurisprudence has not been followed, does not constitute any kind of irregularity. It is not true, however, that the Supreme Court has varied its judicial view with regard to the supervisory powers of the labour inspectorate, given that, since 1991, the Supreme Tribunal has stated in some of its rulings that “the power of oversight and the task of determining the sense and scope of legislation only permit ... the observation and rectification of objective and evident violations of labour and provision legislation and must be restricted to making the relevant complaint, because the legal classification of facts is a matter of definite jurisdiction that falls within the sphere of the courts of law”. Labour inspectors are competent to take decisions only where there exists an immediate correspondence between legal provisions and the facts.
26. 352. In conclusion, Chilean labour legislation, with a view to protecting trade union rights and, in conjunction, penalizing any practice that goes against the principles of freedom of association, sets out in section 289 of the Labour Code a specific chapter in this respect, entitled “On unfair and anti-union practices and penalties for such practices”. This stipulates, in section 292.3, that “examining and resolving violations involving unfair or anti-union practices shall be the responsibility of labour law judges”. This is confirmed by the administrative jurisprudence of the National Labour Directorate, which states that “examining and resolving violations involving unfair or anti-union practices shall be the responsibility of labour courts”. In connection with the information presented in this complaint, it should be mentioned that it is the courts of law that are charged with examining such matters and which, in view of their independence and impartiality, can guarantee protection for and restoration of labour rights when those rights have been violated or contravened. In this case, it does not appear that any complaint was registered with the courts of law in this respect.
27. 353. The Government states that, considering the necessity of ensuring that controversies such as those which have given rise to a dispute in this case should be subject to institutional proceedings that are most efficient and appropriate to the belligerence or impatience of the parties, it does not discount the possibility of improving its legislation on the issue of determining the status of the employer in cases where there are disagreements between the parties. From an employment perspective, it is necessary to ensure proper compliance with legislation and, in the context of the Subcontracting Act, which recognizes certain forms of outsourcing work and services, particularly through regulating work by subcontracting and recognizing situations in which personnel are supplied, a series of institutional weaknesses have become clear in terms of resolving problems that may arise in the application of new regulations, and in general with respect to legislation that penalizes employers who hide their status as such in relation to one or more employers.
28. 354. The Government states, lastly, that determining the status of an employer is the starting point for the labour protection regime maintained by labour legislation, such that determining that status cannot be left to the workers affected but requires coordinated institutional action. As a result, consideration is being given to the need to draft legislation granting the Labour Directorate the authority to bring cases before the courts if it finds that an employer’s status has been concealed, given that, if responsibility for bringing a case resides solely with the worker, in practice a large part of labour legislation and, in particular, one of the aspects of the Subcontracting Act will lose their effectiveness.

C. The Committee’s conclusions

1. 355. The Committee notes that in this case the complainants allege that, in the context of the legal strike carried out by the CTC, which comprises workers in a subordinate and dependent relationship with contracting enterprises of the state enterprise CODELCO, between 25 June and 1 August 2007, the forces of law and order used force in an unnecessary manner, repressed workers, carried out illegal arrests and searched the house of a member in order to temporarily detain two workers (who in the end were not charged) and that, during collective bargaining, anti-union acts occurred and workers participating in the strike were dismissed. The Committee also notes the complainants’ allegations that although CODELCO, the contracting enterprises and the CTC concluded the Framework Agreement on 1 August 2007 that put an end to the dispute and, among other things, provided for payment of wages not received during the days of the strike and the reinstatement of those dismissed, the Agreement, according to the complainants, has not been fully implemented and, furthermore, according to the complainants’ allegations: (1) the removal was requested of union leaders Mr Emilio Zárate Otárola, Mr Patricio Rocco Bucarey, Mr Luis Garrido Garrido, Mr Patricio Alejandro García Barahona, Mr Ramón Segundo Salazar Vergara, Ms Viviana Andrea Abud Flores and Mr Juan Francisco González Bugueño; and (2) blacklisting has been introduced preventing trade union leaders Mr Andrés Leal Alvarado, Mr Alvaro Guajardo, Mr Cristian Cuevas Zambrano and Mr Jorge Peña Maturana from gaining access to their workplaces. The Committee further notes that the trade union organizations object to the fact that the Labour Directorate has not promoted resolution of the dispute through the mediation system.
2. 356. With regard to the complainants’ allegations that, during the strike called by the CTC in 2007, the forces of order used force in an unnecessary manner, repressed workers, carried out illegal arrests and searched the home of a member, the Committee takes note of the Government’s statement that: (1) when the Secretariat-General of the national police was consulted, it stated, in a report dated 26 May 2008, that, according to information obtained by the National Directorate for Security and Public Order of the National Police, no police procedures were identified which would have involved officers of the national police entering and searching trade union premises; (2) for their part, on 4 July 2007, with prior verbal authorization from the supervisory judge for Los Andes, institutional personnel entered and searched the property belonging to Mr Cristian Patricio Cabezas Carrasco, with the intention of arresting suspects Mr Juan Carlos Miranda Zamora and Mr Francisco Javier Díaz Herrera (who, according to the complainants were not charged), both accused by witnesses of committing the offence of attacking a moving vehicle, resulting in damage, as provided for in section 196(h) of Traffic Act No. 18290, in respect of bus PP-YU-4589, which was transporting workers who were on the way to pursue their usual duties at the mining site, the facts of which were communicated to the local Office of the Public Prosecutor for Los Andes in report No. 2343 of 4 July 2008; (3) during collective bargaining and work stoppages, it is public knowledge that, in certain areas of the country, serious disruption of public order and damage to public and private property have been seen. These unlawful acts have prompted intervention by officers of the national police, with the aim of restoring the rule of law, leading to the arrests of some workers and union leaders; (4) individual reports of these events were produced describing actions that obstructed the normal ingress of workers and vehicles, stone throwing that resulted in injuries, cuts in the electricity supply, attacks on items belonging to fire-fighters that resulted in damage, threats against contracting workers who wanted to go about their normal duties and countless other actions which, given their severity and magnitude, warranted the intervention of officers of the national police; (5) fundamental labour rights, respect for and exercise of which are guaranteed by the Chilean Constitution, as well as by international treaties ratified by Chile and incorporated into domestic legislation, must exist in harmony with other fundamental rights, which justifies the intervention by the national police; and (6) this intervention was not in any way intended to repress or affect the essence of the fundamental rights of the organization but, on the contrary, to guarantee fuller exercise of the rights of workers in all spheres, with full respect for the other guarantees enshrined in the Fundamental Charter.
3. 357. The Committee takes note of the contradictory versions given by the complainants and the Government of the violent events that occurred during the strike. In these circumstances, the Committee requests the Government to provide information on any proceedings against the two workers arrested during the search, sanctioned by judicial order, of the home of a member of the union, Mr Juan Carlos Miranda Zamora and Mr Francisco Javier Díaz Herrera (who, according to the complainants, were not charged) and whether other union leaders or members have been arrested and charged, and, if so, that it provide information on the charges brought and the current status of any legal proceedings. Furthermore, the Committee requests the Government to provide information on whether any legal action has been brought in respect of these events.
4. 358. With regard to the alleged failure to comply with the Framework Agreement concluded on 1 August 2007 between CODELCO (according to the complainants, the enterprise occupies a dominant position with respect to the contracting and subcontracting enterprises), the subcontracting enterprises and the CTC, putting an end to the dispute, the Committee takes note of the Government’s statement that CODELCO has reported that the contractors have complied with the manual of good practice in a full and satisfactory manner. Furthermore, the Committee takes note of the Government’s statements that: (1) it does not follow that CODELCO should be accused of anti-union practices, as the employer, because it is not the employer of the complainant workers and it has the status of “main enterprise”, for which reason it does not have a legal employment relationship with workers in the respective contracting and subcontracting enterprises, but only a civil relationship arising from a “contractual agreement”; (2) CODELCO, as a party to and important component of the production process carried out jointly by CODELCO, its contractors and subcontractors, promotes and monitors the status of the manual of good practice and, in the hope of contributing to the resolution of the dispute affecting its contracting enterprises and their workers, signed the Agreement, which clearly sets out guidelines of a general nature for these enterprises; and (3) despite having an interest in the issue, CODELCO is subject to obvious limitations as regards interfering in the definitions used in the human resources policies of contracting enterprises. The Committee recalls in this respect that it has on numerous occasions underlined that “agreements should be binding on the parties” [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 939]. In these circumstances, observing that the Government recognizes that CODELCO is a signatory party, together with the subcontracting enterprises, to the Framework Agreement concluded on 1 August 2007 with the CTC, the Committee requests the Government to ensure compliance with the agreement in question. The Committee requests the Government to keep it informed in this regard.
5. 359. With regard to the alleged request for removal of union leaders Mr Emilio Zárate Otárola, Mr Patricio Rocco Bucarey, Mr Luis Garrido Garrido, Mr Patricio Alejandro García Barahona, Mr Ramón Segundo Salazar Vergara, Ms Viviana Andrea Abud Flores and Mr Juan Francisco González Bugueño, the Committee takes note of the Government’s statements that: (1) the procedure has been defined as such by the contracting enterprises for which the individuals concerned work; (2) this procedure is a mechanism to protect the worker against possible acts of discrimination by the employer and, as such, is a means of guaranteeing protection of the right to organize; (3) this guarantee arises from section 174 of the Labour Code, which states that in the case of workers subject to immunity from dismissal, the employer may not terminate a contract without prior authorization from a competent judge; (4) with a view to safeguarding employment stability, a prior decision must be made by the courts of law, whose independence and impartiality are beyond doubt; (5) taking such action does not constitute an anti-union act; quite the contrary, it is a decision to proceed in obtaining prior authorization from a competent judge before dismissing a union leader, and the decision will be taken after “due process”; (6) the legitimate party to initiate removal proceedings is the employer (in this case the contracting enterprises); and (7) CODELCO cannot be considered to have engaged in anti-union practices itself, nor is it responsible for removal actions against workers belonging to the CTC. In these circumstances, and observing that the removal requests for the union leaders were made simultaneously, including for the national director of the CTC, the Committee requests the Government to provide information on the specific facts of the cases and the reasons given for beginning proceedings to remove the union leaders mentioned, and on the outcome of these proceedings.
6. 360. With regard to the allegation that blacklisting is being used to prevent access to workplaces and contact with workers by union leaders Mr Andrés Leal Alvarado, Mr Alvaro Guajardo, Mr Cristian Cuevas Zambrano and Mr Jorge Peña Maturana, the Committee takes note of the Government’s statement that the enterprise has reported that: (1) workers with a contract in force with subcontracting enterprises who are working in industrial areas in the enterprise’s various divisions can enter without restriction in order to fulfil their agreed duties, under the responsibility and oversight of their respective employers; and (2) if no employment relationship exists, in order to safeguard the health and integrity of persons and the security of facilities, access to workplaces is authorized provided that the corresponding permits are requested from the administration at the appropriate time and with proper grounds. The Committee takes note of the Government’s statements that: (i) these measures to restrict access are implemented for the safety and physical integrity of people in mining installations and in order to comply with regulations on mining safety, the aim of which is to prevent risks in mining installations; and (ii) there is no evidence to prove that such practices have been introduced by CODELCO. Although it takes note of the particular characteristics of the mining industry, which could complicate the granting of access to workers from outside an enterprise, the Committee recalls that on numerous occasions it has underlined that “governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization” [see Digest, op. cit., para. 1103]. In these circumstances, the Committee requests the Government to take all necessary measures to promote an agreement between CODELCO and the CTC so that the CTC’s representatives can gain access to workplaces to pursue their union activities, without compromising the functioning of the enterprise. Furthermore, the Committee requests the Government to investigate the allegation that the union leaders mentioned above have been refused work and to keep it informed in this regard.
7. 361. With regard to the allegation that the Labour Directorate did not promote resolution of the dispute through the mediation system, the Committee takes note of the Government’s statement that the Directorate has formal mediation facilities, staffed by professionals dedicated exclusively to the service, but that the service is initiated at the request of parties and that in this case no requests to this effect were received. In these circumstances, observing that the parties in the dispute have arrived at an agreement with regard to the dispute, the Committee will not proceed with examination of this allegation.
8. 362. Lastly, the Committee observes that the complainants have stated that the enterprise introduced a procedure designed to avoid application of the Subcontracting Act and that the Government has not sent a reply in this regard. Nevertheless, the Committee will not proceed with examination of this allegation as it is not connected with alleged violations of trade union rights.