Rapport définitif - Rapport No. 85, 1966

1. 15. The Committee has already made several interim reports to the Governing Body on this case. At the May (1965) Session it submitted the following recommendation in paragraph 124 of its 83rd Report:
   • The Committee notes with interest the communication received from the Government, which quotes the operative part of the Supreme Court's judgment. Nevertheless, in view of the fact that the Court also refers to the judgments of first and second instance, which appear to have contained a detailed analysis of the reasons for the measures taken against Mr. Sánchez Ossandón in the light of de facto and de jure aspects of the case, the Committee recommends the Governing Body, in order to secure all the material needed to come to a conclusion on this case, to request the Government to be good enough to forward copies of these judgments and their grounds.
2. 16. The 83rd Report was approved by the Governing Body at its 162nd Session (May-June 1965) and the request contained in paragraph 124 thereof was communicated to the Government by letter dated 8 June 1965.
3. 17. The original complaint figures in a communication dated 25 August 1961 which was sent to the I.L.O by the Chilean Confederation of Industrial and Commercial Workers. The same organisation gave supplementary information in a letter of 20 October 1961. The Confederation of Privately Employed Clerical Workers submitted a complaint to the same effect in a letter dated 4 October 1961. The above communications, and further information provided by the Chilean Confederation of Industrial and Commercial Workers in a letter of 31 January 1962, were transmitted to the Government in due course.
4. 18. The Government of Chile sent its first reply on 20 November 1961.
5. 19. Chile has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to the Dismissal of a Trade Union Officer
  20. 20 The complainants alleged that Mr. Enrique Sánchez Ossandón, President of the Chilean Confederation of Industrial and Commercial Workers and a member of the Central Mixed Wages Commission, who was employed by Madeco S.A. (a copper-manufacturing company), was dismissed from that undertaking for having come to Geneva to attend the 45th Session of the International Labour Conference, as Chilean Workers' adviser, in June 1961. They stated further that Mr. Sánchez Ossandón was appointed as adviser under Decree No. 412 of 2 June 1961; that on the same day he informed Madeco of his appointment, sent a copy of the communication to the Labour Inspectorate and asked the Ministry of Labour to notify Madeco of the appointment, which was done by official letter on 5 June; that Madeco, in reply to the Ministry's letter, said the company reserved all its rights in regard to the situation which Mr. Sánchez Ossandón had created by absenting himself from work without his employer's permission. The complainants attached copies of various documents in support of their complaint and added that when Mr. Sánchez Ossandón returned to Chile and reported to the Madeco Company to resume his duties, he was not allowed to enter and was informed that his services were terminated; he reported this to the Labour Inspectorate on 2 August and, at the same time, lodged a request with the labour court to be reinstated, since he enjoyed trade union privilege through being a member of the Central Mixed Wages Commission and Chairman of the Confederation of Metal Workers' Unions. Mr. Sánchez Ossandón brought the case to the notice of the Ministry of Labour which, according to the complainants, made representations to Madeco but could not induce it to change its attitude. The complainants alleged that the attitude of Madeco was merely a continuance of a campaign of persecution against Mr. Sánchez Ossandón on the sole ground of his trade union activity.
  21. 21 In its reply of 20 November 1961 the Government stated that as soon as the competent authorities were informed of the matter they instructed the labour services to investigate the facts and to demand compliance with the rules protecting trade union officers; that in view of the undertaking's refusal to reinstate Mr. Sánchez Ossandón the provincial labour inspectorate laid information with the labour courts for contravention of the existing rules, which forbid dismissal or suspension of trade union officers without previous judicial permission; and that in a letter to the Ministry of Labour the Managing Director of Madeco contended that Mr. Sánchez Ossandón had not been dismissed but that his employment contract had lapsed for statutory reasons, namely frequent absence from work and abandoning his post when he went to Geneva.
  22. 22 At its sessions in October 1962 and May 1963 the Committee examined the additional information which had been sent by the Government at the Committee's request. This indicated that although Madeco had eventually been fined in the proceedings taken by the labour authorities, Mr. Sánchez Ossandón had not been reinstated in his employment or received any compensation, since the proceedings to that effect which he had taken against the company before the labour courts were still pending.
  23. 23 By letter of 21 December 1963 the Government stated that the court of first instance had not granted Mr. Sánchez Ossandón's application and that he had lodged an appeal; when a final decision had been reached the Government would forward a copy. While awaiting further information the Committee decided, at its 35th, 36th, 37th, 38th and 39th Sessions, to postpone examination of the case and ask the Government to forward the necessary information as soon as possible.
  24. 24 At its 40th Session the Committee took note of a further communication from the Government, dated 17 March 1965; it reported that the decision of the court of second instance had been partly favourable to Mr. Sánchez Ossandón, but that the other party had appealed to the Supreme Court, which, in a judgment given on 3 July 1964, had confirmed all the findings of the court of first instance. Moreover, as the judgments of the courts of first and second instance-copies of which had not been sent by the Government-might contain elements of value with a view to reaching a conclusion on the case, the Committee recommended the Governing Body, in paragraph 124 of the 83rd Report, to request the Government to forward copies of those judgments and their grounds.
  25. 25 By letter dated 20 August 1965 the Government of Chile sent copies of the two judgments, issued respectively on 30 October 1963 (in first instance) and 8 May 1964 (in second instance).
  26. 26 Perusal of the judgment given in first instance, and subsequently endorsed by the Supreme Court, shows that claims by Mr. Sánchez Ossandón against Madeco accumulated during the proceedings. He first requested reinstatement in a post from which he had been transferred to another at a lower level or, failing this, that his contract be held to have been terminated and the company be ordered to pay him compensation; in that claim Mr. Sánchez Ossandón accused the company of engaging in a systematic campaign of persecution by reason of his trade union activities. In a second claim the plaintiff asked that the company be ordered to reinstate him in the post from which he had been dismissed on his return from Geneva and to pay the remuneration corresponding to the period following his dismissal or, failing this, that his contract be held to have been terminated and the company be ordered to pay him compensation.
  27. 27 In the relevant passages (grounds) of the judgment it is stated that the transfer operated by the undertaking, although it involved a lower level of responsibility, neither broke the contract of employment nor infringed Mr. Sánchez Ossandón's privilege as a trade union officer, since in the former connection the terms of the contract did not require him to be employed in the particular post for which he had been engaged, nor had his remuneration been affected by the transfer, and in the latter connection the plaintiff could continue to act as a member of the Central Mixed Wages Commission. There is no proof, the court continues, that the reduction in Mr. Sánchez Ossandón's level of responsibility was part of a systematic campaign to obstruct his work as a trade union representative. He, on his side, was repeatedly late for his work, or left early, or was absent; these were serious breaches of his contract of employment and amounted to reason for lapse of the contract under section 164, item 10, of the Labour Code. It is further stated that the plaintiff failed to attend his work, without justification, on 17 and 18 May 1961, this being a reason for lapse of the contract under item 1 of the same section. However, the court considers that the contract could not be declared terminated for the above reasons because the plaintiff resumed his work without protest on the company's part. On the other hand, in the case of the plaintiff's voyage to Geneva in order to attend the 45th Session of the I.L.O. Conference in the capacity of Workers' adviser, it is a matter of record that the said session ended on 29 June 1961 and that the plaintiff returned to work on 2 August. The plaintiff's absence from his work for the duration of the Conference-the grounds for the judgment continue-and a few days before its beginning and a few days after its close, was justified because article 40 of the Constitution of the I.L.O, of which Chile is a Member, provides that delegates to the Conference shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation. However, the court considers that a delay of 32 days in returning to work was not justified, and that it would have been proper to return by 16 July, the date at which a witness who had also attended the 45th Session of the Conference stated in evidence that he had returned. The court does not accept as valid the reasons adduced by Mr. Sánchez Ossandón to justify his late return. It further considers that the orders issued in the proceedings taken by the Provincial Labour Inspectorate because of the arbitrary dismissal of Mr. Sánchez Ossandón could not affect the present judgment, since those proceedings related only to the company's action in dismissing its employee without going through the statutory forms.
  28. 28 The operative part of the judgment rejects Mr. Sánchez Ossandón's applications and is unfavourable to the company only in that it declares the contract between the parties to be deemed terminated as at 16 July. The plaintiff is exonerated from payment of costs.

29. The Committee notes from the documents communicated by the Government that the reason for termination of the contract of employment between Mr. Sánchez Ossandón and Madeco has been found, by effective judgment of a competent court of law, to be that for which provision is made in item 1 of section 164 of the Labour Code of Chile, namely:

1. The following shall be deemed to be reasons for the lapse of the contract:
2. (1) desertion by the employee of his post for two consecutive days without due cause;
3. ......................................................................................................................................................
4. 30. The Committee observes that Mr. Sánchez Ossandón appears to have enjoyed the safeguards of due process of law throughout the long proceedings which closed with the Supreme Court's judgment of 3 July 1964.
5. 31. The Committee notes further, with satisfaction, that in handing down its judgment the court had regard to the principle stated in article 40 of the Constitution of the I.L.O respecting the privileges and immunities which should be enjoyed by delegates to the International Labour Conference. The Committee also recalls an observation which it made when examining in its 70th Report the allegations put forward in the same case by the Chilean Confederation of Industrial and Commercial Workers with regard to the non-submission of applications for membership of the Workers' delegation to the Conference through fear of reprisals by employers; the Government, it then observed, had described Mr. Sánchez Ossandón's situation as exceptional and declared that the public authorities had taken and would take all the steps in their power to safeguard the employment security of trade union officers to the degree allowed by existing legislation.

32. The Committee accordingly recommends the Governing Body to take note of the additional information provided by the Government in its letter of 20 August 1965 and to decide that the case does not call for further consideration.