Rapport intérimaire - Rapport No. 136, Mars 1973

1. 41. The complainant organisation submitted its complaint to the ILO on 16 June 1972. It was transmitted to the Government, which furnished its observations on 19 October 1972.
2. 42. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 43. The trade union's complaint, signed by Mr. Andrés Leiva Leiva, in his capacity as President, and by Mr. Blas Cárdenas Vásquez, as Secretary, states that, on 18 May 1972 admission to the factory in which they worked was refused to 16 employees including the entire trade union Committee (5 persons), the staff representative and 3 former trade union officials who still enjoyed trade union immunity from dismissal. This action, adds the complaint, was taken by the government official who had been appointed controller of the undertaking and who made use of a group of workers, whose credulity and ignorance he exploited. The complainants maintain that this constituted a breach of contract and of trade union immunity and restricted the right to work. Incidents of this kind, the complainants conclude, are a frequent occurrence in Chile in undertakings taken over by the Government.
2. 44. In its reply, the Government states that the Rayón Said textile firm was taken over by the Government because of the stoppage in the production and distribution of yarns, as a result of which these products were in short supply on the market. The purpose of the takeover was to restore to normal the production and distribution of the goods manufactured in the establishment. On 15 May 1972 the union executive convened a meeting of its members to discuss the ending of the takeover. Out of 68 members, 25 attended, 16 of whom voted in favour of the repeal of the takeover decree. Two days later a general meeting was held, for all the workers in the firm, at which it was decided by the majority of all the wage earners and salaried employees to refuse admission to work to the 16 members of the union who had voted for the end of the takeover. Faced with this situation, the government-appointed controller of the firm terminated the contracts of employment of the ten employees who did not enjoy trade union immunity "for having repeatedly failed to show the loyalty due to their fellow workers and to the undertaking as regards both the production and the marketing of its products". At the same time, the controller informed the Labour Inspectorate of the decision to suspend the five leaders and the staff representative and requested authorisation from the courts for an exception to be made in the case of these persons to the legislative provisions applicable to workers enjoying trade union immunity against dismissal.
3. 45. On 26 July 1972, the Government continues, the union members held an extraordinary meeting at which the majority passed a motion of censure against the executive of the organisation. According to the motion of censure, the leaders of the union had to resign immediately from their office and the members had to take the necessary steps for the appointment of new leaders. The Government adds that the former executive of the union, together with the staff representative, realising that it was impossible to continue working in the undertaking in view of the hostility, not only of the members of the union of wage earners of the firm, but also of the members of the salaried employees' union, chose to resign or terminate their employment relations with the undertaking.
4. 46. The Government states that the 16 persons affected by the measure adopted at the meeting took legal action to secure recognition of their rights. Some requested to be reinstated in their employment, considering that they had been unfairly dismissed. At the time of the Government's communication, the relevant legal proceedings were still pending. The Government concludes by saying that the firm has paid the former members of the executive and the staff representative what was due to them in accordance with the law and that it has not infringed the legislative provisions concerning trade union immunity, which they no longer enjoyed since they had been censured by a meeting of the very union they were supposed to represent.

B. B. The Committee's conclusions

1. 47. The Committee has taken note of the documentation sent by the Government with its communication, from which it appears that in August 1972, one of the members of the executive of the union resigned from his employment while the remaining four were dismissed "for reasons connected with the undertaking". It is also apparent from these documents that the motion of censure against the union leaders was motivated by their infringement of the union rules and particularly by their political activities, it being considered "inadmissible and in obvious breach of the union rules to take advantage, for ends and purposes of this kind, of the exclusively trade union office to which they had been elected".
2. 48. The Committee observes that in the present case a group of 16 trade unionists who, at a union meeting, had voted against the government takeover of the firm for which they worked, were prevented from entering their place of work by other workers in the firm. Confronted with this situation, the government-appointed controller of the undertaking decided to dismiss 10 of the trade unionists and set in motion the legal procedure to secure the waiving of the provisions concerning trade union immunity from dismissal in the case of the other 6 (5 of whom were trade union leaders). Shortly afterwards, these leaders gave up their trade union functions upon being censured by the union meeting, thereby losing the right, as trade unionists, to immunity against dismissal. Subsequently one of them resigned from his employment and the other four were dismissed "for reasons connected with the firm".
3. 49. From the information available, it would appear that the action taken by the government-appointed controller of the firm against the trade unionists was motivated partly by; the need to deal with a situation that had arisen when the workers refused to allow the trade unionists to enter the undertaking; it would also appear, however, that these measures were applied as a penalty for the attitude taken at a trade union meeting against the takeover ordered by the Government. In general terms, the Committee considers that a distinction should be made between, on the one hand, the responsibility of trade unionists towards their organisation in the event of its rules being infringed, and on the other hand, the actions of such trade unionists which might constitute a violation of the duties inherent in their employment relations. If a particular form of behaviour on the part of certain members or leaders within the trade union organisation did not at the same time constitute a violation of their duties as workers, the penalties that might, on such grounds, be applied to them by an employer would amount to acts of discrimination likely to undermine freedom of association in connection with employment and workers should be protected against such acts.

Z. ANNEX

• ADDENDUM
• Case No. 703
• COMPLAINT PRESENTED BY THE NON-MANUAL WORKERS' UNION OF THE MAIPU FACTORY OF RAYON SAID INDUSTRIAS QUIMICAS SA AGAINST THE GOVERNMENT OF CHILE (SUPPLEMENTARY PARAGRAPHS)
  1. 1 This case was examined by the Committee at its session in February-March 1973, at which time it submitted a report in paragraphs 41 to 50 of its 136th Report, which is before the Governing Body for examination at its present session (190th Session, May-June 1973). In the meantime the Government has sent a communication dated 28 February 1973, in which it makes certain observations on the Committee's conclusions and requests that these observations be examined by the Governing Body in conjunction with the above-mentioned report on the case.
  2. 2 In its communication the Government states that from the account of the facts of the case given by the Committee it emerges quite clearly that the complainants themselves admit that they were prevented from entering the factory by their fellow workers; that at a meeting of workers a decision was taken to refuse admission to the sixteen members of the union who had voted for the ending of the takeover of the undertaking; that at a meeting of the union a motion of censure was passed against the executive of the organisation calling on the leaders of the union to resign; and that the former executive of the union, together with the staff representative, realising that it was impossible to continue working in the undertaking in view of the hostility of the members not only of the wage earners' union but also of the salaried employees' union, chose to resign or terminate their employment relations with the undertaking. Nevertheless, the sixteen employees affected by these measures appealed to the courts to secure recognition of what they claimed to be their rights, some of them requesting to be reinstated in their employment, considering that they had been unfairly dismissed. The relevant legal proceedings are still pending.
  3. 3 The Government goes on to state that the Committee's conclusions are not consistent with its account of the facts and are unacceptable to the Government. Paragraph 49 of the report reads as follows: "From the information available, it would appear that the action taken by the government-appointed controller of the firm against the trade unionists was motivated partly by the need to deal with a situation that had arisen when the workers refused to allow the trade unionists to enter the undertaking", and adds: "It would also appear, however, that these measures were applied as a penalty for the attitude taken at a trade union meeting against the takeover ordered by the Government". This last sentence, according to the Government, is subjective, takes no account of any of the information supplied and is a premature pronouncement on an issue which has to be settled by the courts.
  4. 4 The Government recalls that in taking over the firm the Government was exercising the sovereign powers vested in it by law, and that its reason for doing so was that the production and distribution of the yarns which the firm manufactured were paralysed, thus causing these products to be in short supply on the market. In the light of all this, continues the Government, the Committee's subsequent statements are even harder to understand, when, referring to the behaviour of certain members or leaders within the trade union organisation which did not at the same time constitute a breach of their duties as workers, the Committee observes that "the penalties that might, on such grounds, be applied to them by an employer would amount to acts of discrimination likely to undermine freedom of association in connection with employment, and workers should be protected against such acts". The Government claims that the takeover was effected precisely for the purpose of safeguarding the interests o€ the working class, and can in no way be considered likely to have undermined freedom of association in connection with employment. Furthermore, continues the Government, as may be seen from the existing documentation, the employees in question acted as the agents of the firm taken over, which had, for political reasons, suspended the manufacture and distribution of its products.
  5. 5 The Committee takes note of the Government's observations, and wishes to explain that when it stated that it would also appear that the measures taken by the controller of the firm against the trade unionists "were applied as a penalty for the attitude taken at a trade union meeting against the takeover ordered by the Government" it was taking into account the fact that at the same time as the controller suspended from their employment five trade union leaders and the staff representative (pending a subsequent application to the courts for authorisation to dismiss them) he decided to terminate the contracts of employment of ten other employees, who had voted with the former against the takeover at a union meeting, on the ground that they had "repeatedly failed to show the loyalty due to their fellow workers and to the undertaking as regards both the production and the marketing of its products".
  6. 6 The Committee considered, and still considers, that both the facts reported and the reasons given by the controller for dismissing trade unionists not enjoying special immunity reveal a relation of cause and effect between the attitude to the takeover taken by the leaders and members of the union and the measures taken against them by the controller. This attitude was decided upon at a union meeting and took the concrete form of a vote against the takeover; it does not appear from the information available that this was followed up by any further action on the part of those concerned, such as an individual or collective stoppage of work. In other words, this was an attitude taken by certain trade unionists within the context of their activities within the union, and it had no bearing on the discharge of their duties under their contract of employment. For this reason, the Committee took the view that, in general terms, a distinction should be made between, on the one hand, the responsibility of trade unionists towards their organisation in the event of its rules being infringed and, on the other hand, the actions of such trade unionists which might constitute a violation of the duties inherent in their employment relation. The Committee observed that if a particular form of behaviour on the part of certain members or leaders within the trade union organisation did not at the same time constitute a violation of their duties as workers, the penalties that might, on such grounds, be applied to them by an employer would amount to acts of discrimination likely to undermine freedom of association in connection with employment. On the other hand, the Committee never regarded as an act of anti-union discrimination the taking over by the Government of the firm of Rayón Said SA.
  7. 7 In these circumstances the Committee recommends the Governing Body to take note of the Government's observations and to decide, in the light of the considerations set forth in the two preceding paragraphs, that it is appropriate to adhere to the conclusions it reached concerning this case, which are set forth in paragraphs 49 and 50 of the Committee's 136th Report.
• Geneva, 29 May 1973.