Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 359, Marzo 2011

Effect given to the recommendations of the Committee and the Governing Body

1. 25. In its previous examination of the case in March 2010, the Committee made the following recommendations on matters still pending [see 356th Report, para. 399]:
   • (a) The Committee expects to receive without delay information from the Government on the status of legal proceedings against those arrested during the search, sanctioned by judicial order, of the home of a union member, Mr Juan Carlos Miranda Zamora and Mr Francisco Javier Díaz Herrera (who, according to the complainants, have not been charged), and as to whether other union leaders or members have been arrested and charged in relation to the strike carried out by the CTC between 25 June and 1 August 2007, and, if so, requests that the Government provide information on the charges brought against them and the current status of the legal proceedings. Furthermore, the Committee requests the Government to supply information as to whether any legal action has been initiated in respect of the violent acts.
   • (b) The Committee expects to receive without delay information from the Government on the specific facts of the cases and the reasons given for beginning proceedings to remove the 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, as well as on the outcome of these proceedings.
   • (c) The Committee requests the Government to take the necessary measures to promote an agreement between CODELCO and the CTC so that the CTC’s representatives can gain access to workplaces or nearby areas to pursue their union activities, without compromising the functioning of the enterprise and with full due consideration for the safety of workers and of the mine and in accordance with national law. Furthermore, noting that the Government has only reported that Mr Francisco Javier Díaz Herrera is employed by a contracting enterprise that provides services to CODELCO, the Committee requests the Government to indicate without delay whether the other union leaders mentioned in the complaint have been refused work.
2. 26. In its communication of 8 October 2010, the Government states that there are no records in the registry of the Public Ministry of Juan Carlos Miranda or of Francisco Javier Díaz Herrera, and adds that the latter is currently working for a company that provides services for CODELCO and is president of the union at that company. The Committee notes this information.
3. 27. The Government also states that during the strike in 2007, a number of workers and trade unionists were convicted of offences but the great majority of them had their sentences suspended. The offences were those of damage to property, theft, threats, public disorder, or obstruction of access to the mine. The Committee notes this information.
4. 28. As regards the proceedings to strip certain union officials of trade union immunity (which would permit their dismissal), the Government states that the judicial authority rejected the application to remove immunity from Emilio Zárate and Patricio Rocco, and that neither the company of Luis Garrido Garrido nor that of Juan Francisco González Bugueño applied to the judicial authority to remove their immunity. The Committee notes this information.
5. 29. With regard to Patricio Alejandro García Barahona, Ramón Segundo Salazar Vergara and Viviana Andrea Abud Flores, the Government states that case no. 94720 concerning removal of immunity is currently before the lower-level Labour Court of Rancagua According to the employer (the contracting enterprise Mc Lean), on 4 June 2008, at around 7.20 a.m. at the CODELCO facilities in the Colón Alto sector, the individuals in question interfered with the free passage of vehicles and persons by placing themselves underneath workers’ buses at the head of the convoy headed for the mine, thereby preventing 48 buses carrying around 2,000 workers from CODELCO and contracting enterprises from getting to the mine, seriously endangering their own lives and causing major losses to the El Teniente division. As a result of these actions, the company Mc Lean applied to have the individuals in question stripped of their immunity for contravening section 160, paragraph 5, of the Labour Code (acts or omissions or reckless actions that affect the safety or functioning of the establishment, the safety and activity of the workers, or their health). The Government adds that on 11 March 2010, a lower court ruling agreed to the lifting of the workers’ immunity and thus authorized the employer to dismiss them. On 21 April 2010, the workers lodged an appeal against that ruling, which is still pending. The Committee requests the Government to inform it of the outcome of the appeal.
6. 30. As regards the right of union officials to visit workplaces, the Government states that according to Chilean labour legislation, trade union officials employed at a contracting enterprise may visit dependent areas of the main contractor provided that members of the union are employed at those sites and the purpose of the visit is trade union activity. Thus, section 255 of the Labour Code provides that: “Ordinary or extraordinary meetings of trade union organizations shall be held in any union premises outside working hours and shall have the purpose of enabling their members to discuss matters of relevance at the entity in question ... They shall, however, be entitled to hold meetings during working hours if they have been agreed in advance with the employer or employer’s representative.”
7. 31. The Government adds that as a result of the legal framework described above, if one or more of the union officials in question work normally for a contracting company and have duly authorized passes or cards, they can visit production areas in the various subsidiary divisions of the company, as does any worker performing his duties, in strict compliance with safety and health requirements, and can carry on their trade union functions within the terms of section 255 of the Labour Code. On the other hand, if the union officials in question are not providing actual services in their respective enterprise, or if the civil or commercial contract between the contracting enterprise and the principal contractor enterprise has expired and they consequently no longer have normal authorization to enter the workplace, CODELCO, in order to protect the health and safety of persons and the security of its facilities, as required by section 184 of the Labour Code, shall authorize admission to workplace provided that authorization is sought in advance. In accordance with section 183-E of the Labour Code, the principal contractor has the obligation, together with the contracting company, to adopt any measures needed to protect the lives and health of subcontracted workers at the workplaces in question.
8. 32. In this context, the Government goes on to state that the mining enterprise CODELCO has implemented a vigorous and efficient system of health, safety and protection at the workplace, including, among others, the provision according to which every person seeking admission to work including the CODELCO union officials and those of the corresponding contracting enterprise, must be in possession of respective cards or passes that are issued following a rigorous administrative procedure, wherever there is restricted access to the industrial areas or other dependent areas of CODELCO. The Government draws attention to the fact that in accordance with its legal prerogatives, the National Labour Directorate has issued an order concerning access to the company for trade union officials.
9. 33. On that basis, and in accordance with the recommendations made by the Committee on Freedom of Association of the ILO’s Governing Body, the prevailing national and international labour standards in the area of freedom of association and occupational safety and health, given the diversity of labour rights which converge in this area, and with a view to ensuring the full implementation and respect for workers’ rights, trade union activities at CODELCO work sites can be carried out under the following conditions: (1) there must be workers at the site in question who are members of the union and represented by the officials seeking access to the workplace, a fact which must be certified by the competent labour inspector; (2) where union officials are not employed at the site or in the activities concerned, they must give advance notice to CODELCO of the date, time and reasons for the visit; (3) the visitors must adhere to the applicable company rules, especially as regards entry to restricted areas; and (4) the trade union activity within the company’s dependent areas must not entail any disruption to the normal processes of work, meals, rest and recreation of workers employed there, above all of those who are not union members.
10. 34. The Committee notes this information.
11. 35. As regards the Committee’s question as to whether the union officials have been refused work, the Government, in the context of requests made for such information, has received no new information regarding the circumstances of alleged refusals involving any official named in the complaint. Since the complainant organizations have not provided any information on this question, the Committee will not pursue its examination.