Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 159, Novembre 1976

Introduction

1. 5. In its consideration of Case No. 765, the Committee examined a series of allegations on infringements of trade union rights and submitted two reports on the matter to the Governing Body which are contained in paragraphs 553 to 568 of its 139th Report and 222 to 271 of its 142nd Report. At its 193rd Session (May-June 1974), the Governing Body decided to refer the matter to the Fact-Finding and Conciliation Committee on Freedom of Association, whose final report was accepted by the Government. This report was considered by the Governing Body at its 196th Session in May 1975. At its 60th Session in June 1975, the International Labour conference adopted a resolution concerning human and trade union rights in Chile. In accordance with this resolution and at the request of the Governing Body, the Government, pursuant to article 19 of the Constitution of the ILO, submitted a report on 28 October 1975 on the steps taken to implement the recommendations of the Committee.
2. 6. At its 198th session in November 1975, the aforementioned Government's report was placed before the Governing Body which instructed the Director-General to ask the Government, again in accordance with article 19 of the Constitution, to report by 1 April 1976 on developments in the situation with respect to the recommendations of the Fact-Finding and Conciliation Commission on Freedom of Association and the Conference resolution. According to this decision, this report should deal in particular with the matters on which the Government has not yet supplied information, including satisfactory answers on certain points (re-election of trade union representatives; the right to collective bargaining; certain specific trade union matters with regard to the restoration of trade union assets, the grant of legal personality to certain organisations, the takeover of two organisations, the normalisation of the financial situation and resumption of activities of specific organisations of rural workers and the avoidance of discrimination between trade union organisations; the dismissal of trade union officials; and points relating to the arrest and trial of trade unionists). In the same decision, the Governing Body requested the Committee on Freedom of Association to examine the report of the Government and submit a report to the Governing Body at its 200th Session. The Government sent its report on 21 April 1976.
3. 7. 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). The Government's report now before the Committee was also requested by the Governing Body pursuant to article 19 of the Constitution in connection with these instruments.

A. A. The complainants' allegations

• Question of the Adoption of New Trade Union Legislation
  8. 8 The Commission had recommended the Government to adopt without delay new trade union legislation. It had pointed out that, in order to be in conformity with the principles of freedom of association embodied in the Constitution of the International Labour Organisation and in order to permit the ratification of the freedom of association Convention, as already envisaged by the Government, this legislation should recognise, in particular, the following principles:
• First: The right of workers, without distinction whatsoever, including public servants, to establish organisations of their own choosing. The implementation of this principle calls for the avoidance of all restrictions which limit freedom of choice as to the type and number of organisations the workers desire to establish, in the case both of primary trade unions and the federations and Confederations capable of forming organisations for different occupations, activities or industries.
• Second: The right of workers to establish organisations without previous authorisation, and without participation by the authorities in the constituent procedure.
• Third: The right of organisations to hold meetings free of control by the authorities, in order to discuss freely the matters relating to internal administration and to the defence of the interests of their members.
• Fourth: The right of organisations to elect their representatives in full freedom, without restrictions as to the number of terms of office, and to define for themselves matters relating to the removal from office of officials by the members.
• Fifth: The right of organisations to organise their administration without interference by the authorities.
• Sixth: The right of organisations to enjoy full guarantees as to facilities for their defence if the question of their suspension or dissolution should come before the court.
• In the resolution concerning human and trade union rights in Chile adopted by the Conference, the Government was invited to repeal the enactments that limit the free functioning of trade unions and to introduce legislation in conformity with the principles of freedom of association.
  9. 9 As pointed out in the report of the fact-Finding and Conciliation Commission (paragraph 528), the International Labour office, in accordance with the suggestion made by the Commission, communicated to the Government in January 1975 certain comments which are reproduced in the report on a preliminary draft of the new trade union legislation. These comments have contained references to several principles of freedom of association and have indicated to the Government the views expressed by the Committee of Experts on the Application of Conventions and Recommendations and by the Committee on Freedom of Association in connection with their examination of other legal provisions imposing similar restrictions to those contained in the preliminary draft. In its report, the fact-Finding and Conciliation Commission observed that the provisions dealing with the trade unions in the new Labour Code, the text of which was subsequently transmitted to it, were essentially the same as those in the preliminary draft, and that only in a very few cases had the comments sent by the Office been taken into account. In the view of the Commission, the provisions of the draft Labour Code, when viewed in the light of the principle of freedom of association, were even more restrictive than those contained in the text previously examined by the office.
  10. 10 In its report of 28 October 1975, the Government pointed out that, in view of the number and importance of the observations voiced in Chile by the workers and employers who had been consulted on the draft Labour Code, the Government had set up tripartite Committees so that they could participate in the drafting of new labour legislation conforming to the ILO Conventions. The Government also observed that there were a number of fundamental points on which discrepancies had arisen and in respect of which they would require the assistance of the ILO. In its report of 21 April 1976, the Government points out that the observations of the workers' and employers' organisations are being analysed in detail by the Government, which reiterates its intention to introduce fundamental reforms in the field of labour and social security, irrespective of political considerations, in keeping with the most modern technical developments and International Labour Conventions. The Government stated that it was working hard to formulate legal bases which would guarantee a genuinely free and representative trade union movement which would concern itself exclusively with trade union matters and avoid being side-tracked or confused by other objectives, such as political objectives.
  11. 11 With regard to trade union activities in practice, the Government referred to the information already provided in its previous report on the number of organisations which had been granted political personality each year from 1964 to 1 August 1975. The Government further provided a list of 184 new trade union organisations that have been set up between 1 August 1975 and 1 April 1976. Most of these organisations were "occupational" trade unions (that is to say unions of employees or employees and workers); in a few rare cases they were federations or "industrial" trade unions (that is to say unions of workers at the level of the enterprise).
  12. 12 The Government pointed out that there had been considerable trade union activity during the period covered by the report. It accordingly provided a list of meetings of various trade union organisations, seminars conducted with the participation of workers, meetings of the authorities with workers, etc. In many cases the purpose of these meetings was to analyse the reform of the social security system or other legislative texts; in other cases they dealt with the problems of particular industries or, as in the case of the workers in the metal industry, with the reorganisation of the trade union leadership. The Government stated that some meetings, such as the Santiago meeting of the Confederation of Copper Workers, that of the miners of El Teniente in Rancagua, or that of trade union leaders in the mining and iron and steel industries in La Serena, had brought together labour representatives from extremely important sectors of the national economy it added that almost all the organisations had held various meetings with their members to study the preliminary draft of the fundamental code of principles and bases of the social security system.
  13. 13 As examples of trade union activity, the Government further drew attention to the attendance of workers' delegates at various international meetings and the visit of foreign trade union leaders to Chile. It also referred to the contacts between trade union leaders and the Government and to the petitions which a number of organisations had submitted to the authorities. Finally, it stated that the Committee responsible for drafting the new National Constitution had frequently consulted the leaders of the various trade union associations and representatives of the employers in order to analyse the matter of the right to work and the protection of this right, as well as the question of freedom of association.
  14. 14 According to the information supplied by the Government the exercise of trade union rights, since no new trade union legislation has been introduced, continues for the moment to be governed by the legislation that was adopted prior to the change of regime on 11 September 1973, together with the restrictions imposed by the Government since that date in respect of a number of important aspects of trade union activity. These restrictions include a ban on elections to fill vacant posts in the executive Committees or to set up such Committees in new organisations; provisions, applied more or less strictly, according to which the trade union assemblies must be purely informative in character or limit themselves to the examination of the internal management of the organisations; the ban on the submission of collective demands to employers, collective bargaining and strikes. It should be borne in mind that the Government had assured the Fact-Finding and Conciliation Commission that it recognised the rights of workers referred to here and that their suspension was temporary.
  15. 15 The Committee considers that it is of the utmost importance that the Government should adopt as soon as possible new trade union legislation that conforms to the principles of freedom of association and put an end to existing restrictions in this area.
• The Right of Workers, without Distinction Whatsoever, to Establish Organisations of Their Own Choosing
  16. 16 The Fact-Finding and Conciliation Commission had recommended (see paragraph 8 above) that the Government should recognise the right of workers, without distinction whatsoever, including public servants, to establish organisations of their own choosing. The Commission had observed that the implementation of this principle called for the avoidance of all restrictions which limited freedom of choice as to the type and number of organisations the workers desired to establish, in the case both of primary trade unions and of federations and of Confederations capable of forming organisations of different occupations, activities or industries. The aforementioned Government's report, which was examined by the Governing Body at its November 1975 Session, pointed out that certain leaders among the workers had indicated a preference for the maintenance of the single type of organisation with compulsory or automatic membership, as provided for in the legislation which bad been in force in Chile.
  17. 17 In this connection, the Committee draws attention to the fact that, judging from the information supplied by the Government on the new organisations created between 1 August 1975 and 1 April 1976, these organisations seem to belong to the private sector and to have been constituted above all at the enterprise level, most of them seem "occupational" trade unions of which membership is not compulsory under existing legislation. In any case, what is important from the standpoint of the principles of freedom of association is that the restrictions referred to by the Commission should not be imposed by law. The Government did not provide any information on organisations that may have been set up in the public sector.
  18. 18 The Committee would like to emphasise the importance of the principle whereby workers and employers, without distinction whatsoever and without prior authorisation, shall have the right to establish the organisations of their own choosing and the fact that the new trade union legislation should guarantee that workers should enjoy this right both in the private and the public sector.
• The Right to Elect Trade Union Representatives Freely
  19. 19 The Government referred to Legislative Decrees Nos. 198, of 29 December 1973, 349 of 13 March 1974 and 911 of 4 March 1975, whereby the mandates of the officers of trade unions and other kinds of organisation, as they were on 11 September 1973, were successively prolonged and machinery was introduced to fill vacant posts. In an annex to its report, the Government provided a list of federations and Confederations of workers and employers registered in the province of Santiago which included the names of executive Committee members and the dates on which the latest changes occurred. It also submitted a list of the trade union organisations throughout the country that had constituted their executive Committees in accordance with the special provisions of Article 9 of Legislative Decree No. 198 (which empowers the Ministry of Labour to authorise the organisations in certain cases to disregard the regulation requiring the automatic designation of the workers with most seniority). The Government emphasised that absolute impartiality was observed in applying the aforementioned provisions.
  20. 20 The Government stated that, in present circumstances, the holding of elections would introduce a divisive factor which would be at odds with the united effort of national reconstruction. Moreover, it added, since studies for a substantial reform of trade union organisation contained in the draft labour Code were already well advanced, it would not be desirable to elect leaders for organisations that were shortly due to undergo extensive modification. According to the Government, this would merely lead to the unnecessary postponement of the new legislation.
  21. 21 The Committee wishes to emphasise the importance of the principle whereby the organisations of employers and workers have the right to elect their representatives freely, and that the Government should take the necessary steps as soon as possible to ensure that the workers enjoy this right, which is essential to the existence of genuinely representative organisations.
• Collective Bargaining
  22. 22 The Fact-Finding and Conciliation Commission pointed out that, under the terms of certain decisions introduced by the Government, collective bargaining was forbidden. It expressed the hope that the practice of collective bargaining would be reviewed without delay and recommended that, in the meantime, but only as a temporary measure, the Government generalise the setting up of tripartite advisory Committees with a view to making improvements in the remuneration resulting from the general automatic adjustments. The conference resolution invited the Government to repeal all enactments that limit the right to collective bargaining.
  23. 23 In its report of 21 April 1976, the Government referred once again to the economic factors that had made the adoption of drastic stabilisation measures necessary. According to the Government, the reasons given were still valid and made it impossible, during the period of transition to a healthy economy, to re-establish machinery for collective bargaining which, in accordance with Legislative Decree No. 1275 of 2 December 1975, was banned until 1 March 1977. In this connection, the Government referred to the view expressed on other occasions by the Committee to the effect that, under certain circumstances, the Government could, if they considered that the economic situation of the country warranted it at certain times, introduce stabilisation measures prohibiting the free determination of wages by collective bargaining.
  24. 24 The Government stated, however, that, because it realised that no policy of economic stabilisation could be allowed to overlook the requirements of the workers, it had introduced a series of legal provisions providing for the payment of bonuses and the readjustment of remuneration which were designed to compensate for the increase in the cost of living. It pointed out that, if wages were allowed to be fixed freely in the present inflationary situation, the better organised or stronger sectors might obtain greater increases than the weaker sectors. As the impact of these greater increases was passed on to prices, the situation of the lowest income groups would become unbearable.
  25. 25 According to the Government, the readjustment policy being pursued was the only way of tackling the economic situation, favoured the workers and would be maintained so long as the circumstances justifying its application persisted. Legislative Decree No. 1275 had accordingly extended the system of automatic quarterly readjustment of remuneration and other cash benefits that had been agreed upon. It further pointed out that a special bonus had been granted for Christmas 1975 and a special adjustment had been made of the lowest wages in the public sector. It also observed that the provisions continued to be in force whereby the application of agreements, arbitration awards or resolutions of tripartite Committees could be extended to large groups of workers in the same branch - as was done by the Government in certain cases that it specified.
  26. 26 The report contained a list of seven new tripartite advisory Committees that were set up between October 1975 and March 1976 in various sectors, including such sectors as trade and agriculture. It also drew attention to certain decisions which had been taken on the basis of the reports of such Committees, including a 22 per cent readjustment which port employees were granted in December 1975. Other decisions were being studied.
  27. 27 The Committee observes that the ban on collective bargaining has not yet been raised and that, on the other hand, the number of tripartite advisory Committees has been increased, but considers that an important objective of the Government should be to restore the practice of collective bargaining as soon as possible.
• Labour Co-ordination Committees
  28. 28 The Fact-Finding and Conciliation Commission bad referred to labour co-ordination Committees set up by the Government and consisting of representatives of the Government and of trade union organisations. The commission had pointed out that these Committees must not be allowed to be used as a means of channelling the activities of trade unions and had recommended that they should be converted into tripartite advisory bodies presided over by an official of the Ministry of Labour and composed of representatives appointed freely by the organisations of workers and employers. In its previous report, the Government had included the most recent texts that had been adopted in this respect, according to which the Committees were presided over by the intendant of the province or the governor of the department, or their representatives, and the National Labour Co-ordination Committee was presided over by the Minister or Sub-Secretary of Labour and composed of a representative of Each provincial Committee and of 15 representatives of the most representative craft and trade unions in the country. The latter were designated by the Ministry which selects one of three candidates proposed by the organisation. The Government had indicated that these Committees might subsequently be converted into tripartite bodies but that, for the time being, the workers preferred them to continue to be composed only of representatives of the Government and of the trade union organisations.
  29. 29 In its memorandum of 21 April 1976, the Government again stated that these bodies were designed as a means of communication to enable the Government to be informed rapidly and accurately of the labour problems of the private and public sectors and to receive suggestions as to how to overcome them at the departmental, provincial and international level. The Government submitted a list of places where such Committees have been set up in the various provinces of the country.
  30. 30 The Committee would draw attention to the importance it attaches to the observance of the recommendation of the Fact-Finding and Conciliation Commission to the effect that the labour coordination Committees should be converted into tripartite advisory bodies as described in paragraph 28 above.
• Problems relating to Certain Trade Union Organisations
  • (a) Agricultural Workers' Organisations
    31. 31 The Fact-Finding and Conciliation Commission referred to the special situation of the National Confederation of Peasants and Indigenous Workers "Ranquil" and the United Confederation of Workers and Peasants, together with the organisations affiliated thereto. The problems mentioned by these organisations related to the closing of premises and confiscation of documents and other assets and the dissolution of certain federations and trade unions in two provinces by decision of the military authorities. Moreover, in the case of these Confederations and affiliated organisations, payment had been suspended of the financial contributions payable to trade union organisations of agricultural workers under Act No. 16625 of 1967, whereas other organisations of this nature had continued to receive these contributions paid by employers according to the number of persons they employ. According to the report of the Commission, at the level of the communes and provinces the great majority of unions and federations belonging to the two Confederations had ceased all activity. Since the completion of the Commission's work, several complaints had been received in connection with fresh arrests of leaders of these two Confederations.
    32. 32 The Commission recommended that the Government adopt measures with a view to returning to trade union organisations the assets to which they had a legitimate claim, normalising the financial situation of the Ranquil Confederation and United Confederation of Workers and Peasants, making it possible for these Confederations and the organisations affiliated to them to resume their trade union activities, and avoiding any discrimination between trade union organisations, especially as concerns the recognition of their officials as competent to perform the functions assigned to them.
    33. 33 Subsequently, as the Governing Body was informed at its November 1975 Session, one of the organisations involved reported that its assets had not been returned by the authorities, that the latter were preventing the normalisation of their activities and that several of their officials had been arrested for having attempted to conduct normal trade union activities on the basis of the legislation in force. In a communication of 12 February 1976, the World Federation of Trade Unions stated that the funds of the Ranquil Confederation continued to be blocked and that the police frequently visited the Confederation's premises and interrogated those present. The Committee is also continuing its examination, under Case No. 823, of the situation of certain officials of the Ranquil Confederation who are still under arrest.
    34. 34 In its report of 21 April 1976, the Government did not refer specifically to the organisations mentioned above but stated that Legislative Decree No. 1238 of 5 November 1975 stipulated for the years 1974 and 1975 the procedure for distributing among the agricultural federations and Confederations the corresponding percentage of the contribution made by the agricultural employers in accordance with Act No. 16625. The Government emphasises that, according to Article 2 of the Legislative Decree, agricultural trade union organisations will in this respect be taken as meaning all those that have been granted legal personality under the standing provisions of Act No. 16625 and which have not been dissolved by proclamation of the Labour Tribunal. It observes that this Legislative Decree corrected the situation that arose in 1974, when such funds were not properly distributed. The Government adds that, at the same time, the principle of non-discrimination was given legal force inasmuch as all existing trade union organisations that had not been legally dissolved received a share of the funds distributed.
    35. 35 The Committee takes note with interest of the information provided by the Government to the effect that legislative provisions have been adopted along the lines indicated in part of the recommendations of the Commission. However, it is not clear whether the situation of these organisations has been normalised, bearing in mind certain fairly recent complaints and the fact that the Government has not provided any information on measures that may have been taken to restore the assets received and reopen the premises nor, generally speaking, on the circumstances under which the Ranquil Confederation, the United Confederation of Workers and Peasants and their affiliated federations and trade unions are able to conduct their trade union activities in practice.
  • (b) Organisation of Education Workers
    36. 36 The Fact-Finding and Conciliation Commission pointed out that, in the teaching profession, the Single Union of Workers in Education (SUTE) and the National Association of Education Service Employees (ANESE) were being run by government-appointed supervisory Committees and that neither of them was able to engage in any really effective trade union activities. The reasons given in the case of the SUTE were based on the need to verify whether the union's investments were consistent with its aims and purposes. As for the ANESE, it was claimed that it was engaged in trade union and political activities in contravention of the law and of its own bylaws. The Commission observed that it appeared to be the Government's intention to replace the SUTE by a College of Teachers. The Commission was of the opinion that the supervisory Committees could have submitted their reports in the period which had elapsed and that it was for the courts to decide what action was to be taken upon these reports, with due respect for the right of the organisations concerned to be heard in their own defence. The Commission stated that these organisations should be given the opportunity to normalise their position without delay and felt bound to express its concern at the action it was proposed to take with respect to the SUTE since, in accordance with the general principles of freedom of association, it was for the teachers themselves to decide what organisation they considered appropriate to further and defend their interests, and to become members of it. The Commission recommended the Government to end the takeover of the Single Union of Workers in Education (SUTE) and the National Association of Education Service Employees (ANESE).
    37. 37 The Government did not refer specifically to this recommendation either in its earlier report nor in its report of 21 April 1976. However, it should be noted that the College of Teachers was created by Legislative Decree No. 678 of 1974.1 In its comments, the Government states that, in accordance with one of the provisions of Legislative Decree No. 678, the assets belonging to existing craft associations in the various branches of education would become part of the assets of the College of Teachers as these bodies merged with it.
    38. 38 Moreover, provisions have recently been introduced with respect to the teaching personnel in general. By Legislative Decree No. 1284 of 11 December 1975, Act No. 17615 of 28 January 1972 was repealed and the legal personality of the Single Union of Workers in Education (SUTE) revoked. In this connection, the fact-Finding and Conciliation Commission had pointed out that both the Labour Code and the Administrative Code, both of which existed prior to 11 September 1973, contain general provisions prohibiting salaried employees and wage earners in the service of the State from forming unions or calling strikes or taking any action which would disturb normal operation of the service. The Commission observed, however, that workers in the public sector had, years ago, set up various organisations which carried out activities of a trade union character and that a special Act (Act No. 17615 of 1972, now repealed) had provided that these prohibitory rules should not apply to staff of the Ministry of Education. It should be added that, in accordance with the same Act No. 17,615, all the staff of the Ministry of Public Education, who are members of the SUTE, could also be workers in the private education sector, and that the legal personality of this organisation should be recognised once its rules have been registered with the Department of Labour.
    39. 39 Moreover, by Decree No. 930 of the Ministry of Public Education, published in the official Gazette on 3 April 1976, approval was given to the rules of the College of Teachers of Chile, membership of which was extended to all teaching personnel who have a diploma or who have exercised the profession for a certain length of time. The College of Teachers is responsible for the performance of a number of functions relating to the maintenance of the dignity, ethics and discipline of the profession, for carrying out scientific and cultural activities and also for ensuring that members of the profession receive equitable remuneration. In accordance with Article 138 of the Decree, the teachers' associations or groups in any branch of education must forward the projects and proposals that they wish to submit to the authorities through the College, on the understanding that such projects and proposals will be restricted specifically to problems arising in connection with their particular subjects or specialities.
    40. 40 The Committee notes that, from the legislative point of view, a new situation has thus been created which affects the right of all the branches of the teaching profession to join the union of their choice in so far as a college of teachers has been set up by law which is not a trade union but which apparently acts as the sole representative of the profession, even as regards the economic interests of its members.
    41. 41 In these circumstances, the Committee feels bound to point out that the Government has not complied with the Commission's recommendation regarding the ending of its takeover of the Single Union of Workers in Education (SUTE) and that no information has been made available on the position of the National Association of Education Service Employees (ANESE) and that, moreover, the law which enabled the staff of the Ministry of Public Education to exercise its trade union activities had been repealed and the legal personality of the SUTE revoked. This situation is contrary to the principles of freedom of association and to the recommendation of the Fact-Finding and Conciliation Commission to the effect that the new trade union legislation should recognise the right of workers, without distinction whatsoever, including public servants, to establish organisations of their own choosing.
  • (c) Other Organisations
    42. 42 The Commission pointed out that various other organisations had been affected by certain measures or had had to face particular difficulties. The National Federation of Textile and Clothing Workers (FENATEX) and the National Building, Wood and Building Materials Federation (FIEMC) had been unsuccessful in obtaining legal personality and their right to collect union dues through the check-off system had been suspended. The premises of the FIEMC had been raided and the authorities had seized the documents and office equipment; affiliated unions in the provinces had been evicted from their premises or their leaders had been denied recognition by their employers or it was impossible for them to collect dues from their members. In the case of the National Federal of Metalworkers, too, the union's premises had been raided and furniture and office equipment had been seized. The Confederation of Chilean Private Employees (CEPCH) was no longer able to occupy its former premises and was in the course of negotiating with the Government in this regard. In the opinion of the Commission, the various situations showed that there had been specific cases of infringement, obstruction or prevention of the exercise of trade union rights which the Government should have remedied or to which it should have helped to find a solution. The Commission recommended the Government to adopt measures with a view to removing the difficulties obstructing the obtaining of legal personality by trade union organisations which had applied for it, including in particular the FENATEX and the FIEMC, so as to normalise their position, in particular as regards the question of the collection of union dues. Moreover, as mentioned above, the Commission recommended the Government to adopt measures with a view to returning to trade union organisations the assets to which they had a legitimate claim and avoiding any discrimination between trade union organisations as concerns the recognition of their officials as competent to perform the functions assigned to them.
    43. 43 In its report, the Government did not refer to the organisations mentioned in the foregoing paragraph in connection with the problems described therein. However, the Chilean Government delegate stated in the course of the 60th Session of the International Labour Conference (1975) that both organisations alluded to specifically in the Commission report as finding difficulty in obtaining legal personality had been in existence "de facto" for many years and that previous governments had not granted them legal personality either. In this connection, the Committee wishes to point out, as it has done on previous occasions', that, although a government cannot be held responsible for events which took place under its predecessor, it is clearly responsible for any continuing consequences which they may have had since its accession to power.
    44. 44 The Committee considers it necessary that the Government send specific information concerning the effect given to the Commission's recommendations in respect of the organisations mentioned in paragraph 42 above, particularly in respect of the various problems referred to therein.
  • Dismissal of Trade Union Officials
    45. 45 The Fact-Finding and Conciliation Commission pointed out that many trade union officials had been dismissed from their jobs and were thus no longer able to perform their trade union functions. But that while, on the one hand, it was alleged that both measures were taken to oust officials belonging to Popular Unity parties, on the other hand it was claimed that these officials were dismissed for justified reasons, and in particular for having committed unlawful acts such as the occupation of undertakings, for having devoted their time to political agitation or for having defied the authorities since the change of regime. As regards the question of membership of a Popular Unity party being taken as grounds for dismissal, the Commission considered that this factor had been influential or decisive mainly in the case of certain organisations in the public sector. Nevertheless, this ground was not invoked in a uniform manner in the public sector or in the private sector and some trade union officials who were members of these parties were still in their trade union posts. In the public sector, certain legislative decrees had made it possible to relieve numerous officials of their duties without any reason being given. In the private sector, in addition to the grounds for dismissal specified in the former labour legislation, another legislative decree provided for other specific grounds which in themselves might be deemed to be justified grounds for dismissal. Nevertheless this decree allowed such grounds to be invoked also in respect of acts committed in the past, without limit of time, so that a trade union official could be dismissed not only for having participated, for instance, in the organisation of artificial disputes and then in the occupation of an undertaking but also for having played a leading role, at an earlier date, in a strike which was genuinely of an occupational character, although illegal for other reasons (the most frequent kind of strike in Chile). This decree had made it possible to impose sanctions on trade union leaders and the workers in respect of disputes which had long since been terminated, sanctions to which they might not have been subjected for political or other reasons under the previous regime it had also facilitated the taking of reprisals by some employers. The legislative decrees referred to were repealed before the completion of the Commission's work.
    46. 46 The Commission stated that, to protect trade union officials against arbitrary dismissal, the existence was necessary of adequate Provision, together with a procedure offering full guarantees, for supervising the application of these provisions and for remedying the situation when necessary. The commission referred to the suspension of the immunity from dismissal (fuero sindical) as a result of the new provisions and to the composition and procedure of the special tribunals (private sector) and special commissions (public sector) that were set up to hear complaints with respect to dismissal. These bodies were abolished before the Commission completed its work. Briefly, although in a number of cases the acts alleged to have been committed by certain trade union officials did constitute justifiable grounds for dismissal, the Commission, bearing in mind certain circumstances and, in particular, the large number of union officials dismissed and the cases of officials probably forced to resign, stated that it was convinced that both authorities and employers had also used this machinery to rid themselves of union officials who belonged to the former regime or who were, in their opinion, excessively truculent in the performance of their duties.
    47. 47 The Commission recommended the Government to take such measures as might be necessary to enable officials who considered that they had been wrongfully dismissed and whose cases were dealt with by the special commissions, or who were unable to appear at a given time before the special tribunals or commissions, to apply to the competent ordinary courts for the review or examination of their cases.
    48. 48 In its memorandum, the Government referred back to the statement contained in its previous report of October 1975 in respect of employment security. In this connection, it recalled that, in accordance with Legislative Decree No. 930 of 19 March 1975, the Administrative Code of 1960 which applies to persons employed in public administration was once again in full force, as was Act No. 16455 on the termination of contracts of employment in respect of the private sector. As for the recommendation of the Commission, the Governing Body was informed at its November 1575 Session that, in another report on the measures taken to give effect to the provisions of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Government had stated that the recommendation relating to the review of complaints ran counter to the legal principle of res judicata and that the recommendation concerning those who may have been unable to appeal, although it might appear fair and conciliatory, was impracticable. In its report of 21 April 1976, the Government states that since the emergency provisions that were introduced for the period through which the country has passed have been repealed, the provisions now in force conform to those of Convention No. 111.
    49. 49 In this connection, it should be recalled that the Governing Body and the Committee have always maintained that one of the fundamental Principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment - such as dismissal, demotion, transfer and other prejudicial measures. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom. The Committee has further referred to the importance of providing adequate and wholly impartial means of redressing grievances in respect of acts of anti-union discrimination.
    50. 50 The Committee feels bound to point out that the Commission's recommendation has not been complied with and deems it necessary to observe that the failure to take measures to correct such excessively severe or unjust sanctions as may have been taken against certain trade union leaders during an exceptional period or while a state of emergency existed allow an impression of injustice to persist which is prejudicial to the development of labour relations.
  • Civil Rights in Respect of the Exercise of Trade Union Rights
    51. 51 The Commission had pointed out that it would be highly desirable to give priority to certain objectives, namely the release or bringing to trial of trade unionists in custody under procedures which provide full safeguards of defence and impartial judgment; the guaranteeing of the right not to be arrested, except in accordance with the ordinary criminal procedure; and the guaranteeing of protection against all forms of ill-treatment during detention, through the issuance of special instructions prescribing effective penalties. Such measures, and indeed any review of sentences already pronounced or the application of clemency, or even an amnesty, would in the opinion of the Commission, certainly help to restore the climate of normalcy which is one of the main conditions for the effective exercise of trade union rights. The resolution of the Conference, moreover, invited the Chilean authorities to release the trade union leaders and others still in custody on trade union and political grounds, to put an end to torture and ill treatment, to do away with the special courts and exceptional military jurisdiction and to decree a general amnesty.
    52. 52 As to the situation with regard to public order, the Government stated in its earlier report that, on 11 September 1975, the country had been declared to be in a "state of emergency for the purposes of internal security", which meant that the provisions of the code of Military Justice relating to military courts and penal procedure in peace time were once again in force. The councils of war had accordingly ceased to function, except in respect of a small number of offences under the State Security Act as amended by Legislative Decree No. 1009 of 8 May 1975. This decree - which was referred to in the Commission's report - laid down rules for the protection of those detained under the state of siege which, according to the Government, were not provided for in earlier legislation. In a separate communication, the Government sent its comments on a number of new communications relating to the disappearance or detention of trade unionists together with further information on various people in whom the Fact-Finding and Conciliation Commission had expressed an interest inasmuch as they were or had been trade union leaders.
    53. 53 In its report of 21 April 1976, the Government states that the "state of emergency for the purposes of internal security" has been extended for sir months by Legislative Decree of 9 March 1976 in view of the fact that the circumstances which motivated the declaration persist. The Government states that, although no ILO body is competent to analyse rules governing the legal protection of the procedural rights of those detained in respect of criminal acts against the national security of a sovereign State, it considered it useful to provide further information in this respect, which is contained in the memorandum and its annexes. This information is summarised below.
    54. 54 Supreme Decree No. 146 of 10 February 1976, issued by the Ministry of the Interior, which supplements the provisions of Legislative Decree No. 1009 referred to above specifies the three detention centres where detainees can be held in accordance with the provisions governing the state of siege (Puchuncavi, in the province of Valparaiso, and Tres Alamos and Cuatro Alamos, in Santiago). However, the decree authorises the temporary detention of such persons in police stations and premises of the Department of Investigations for as long as may be strictly necessary to have them sent to the aforementioned places. Supreme Decree No. 187 of 28 January 1976 issued by the Ministry of Justice, empowers the President of the Supreme Court and the Minister of Justice to visit, without prior notice, any place of detention in connection with the application of the state of emergency and to verify strict compliance with the legal provisions and regulations relating to the rights of the detainees and to inform the competent authorities of any anomalies observed, in addition to ordering, if they see fit, the immediate medical examination of any detainees who, in the course of the visit, claims to have been subjected to unjustified ill-treatment or harassment. This decree further stipulates that detainees shall be given a medical examination before entering and after leaving the detention cells, establishments or centres. In each case, a written report shall be sent to the Ministry of Justice. If, in the light of the medical examinations or visits of the President of the Supreme Court or Minister of Justice it should transpire that the detainees have been subjected to unjustified ill-treatment or harassment, an investigation shall be held into the matter within 48 hours and appropriate sanctions imposed. The documents sent by the Government include press articles on a number of visits conducted by the President of the Supreme Court and the Minister of Justice to Tres Alamos and Cuatro Alamos, as well as to two premises in Santiago which had been mentioned by certain detainees. In a statement made public by these officials on 19 March 1976, they note inter alia that the 380 detainees in Tres Alamos receive normal treatment. According to the statement, there are currently 27 persons in Cuatro Alamos who, for reasons of security, are being held incommunicado, and the detainees did not voice any complaints regarding ill-treatment by the resident personnel. The President of the Supreme Court and the Minister of Justice did not find any indications of physical maltreatment. As to the other two premises, the statement declares that one is used for the interrogation of detainees before being sent to Tres Alamos or Cuatro Alamos - in respect of which there is no reason to suspect that they received any ill-treatment - and that the other was a clinic to which detainees were not taken. The statement further points out that, except for a brief period between the promulgation of Decree No. 187 of 28 January 1976 and the first days of the following February, the procedure laid down in this decree - whereby the authority responsible for the detention is required to communicate to the detainees' relatives a copy of the detention order indicating who requested it, which official is responsible for the detention and where the detainee is to be taken - is being complied with. The signatories to the statement indicated their intention to continue carrying out visits without prior notice and to deal with any complaint connected with the specific purpose of such visits.
    55. 55 In its report the Government emphasises that no previous government introduced any provision whatsoever to guarantee the rights of persons detained under the state of siege. The Government likewise refers to a statement issued by the President of the Supreme Court of Justice to the effect that the measures adopted by the Government to guarantee the rights of detainees had, at his suggestion, been supplemented by the introduction of a procedure of legal recourse in the event of non-compliance with the obligation to inform the members of the person's family of his detention. In the same statement, the President of the Supreme Court said that, although the majority of the members of the courts had not agreed to designate one of their number to conduct a general investigation into the accusation made by the "Comité Pro Paz" regarding the disappearance of 163 persons whom the Comité claimed had been arrested, the Court did however request some of its members to supervise individual trials. According to the statement, the report on this supervision shows that in many cases some of the persons concerned were at liberty, others had gone abroad, others were being detained under the state of siege, others were being arraigned before military tribunals and, finally, some were common criminals.
    56. 56 The Government states that the measures referred to complied adequately with the Commission's view that it was desirable that protection against all forms of ill-treatment during detention should be guaranteed through the issuance of special instructions. The Government further observes that it rejects the reference to the Conference resolution in paragraph 13 of document GB.198/22/25 submitted to the Governing Body at its 198th Session (November 19/5) inasmuch as it considers that the resolution is an expression of an offensive attitude towards a member country and constitutes a clear attempt, based on political reasons, to interfere in the domestic affairs of a sovereign state. Furthermore, in additional information supplied in connection with trade unionists or former trade unionists who have been sentenced or arrested and whose names are contained in the Commission's report, the Government indicated in a certain number of cases that the persons concerned had been released or had received authorisation to leave the country.
    57. 57 The Committee considers it necessary to recall that, as pointed out by the Fact-Finding and Conciliation Commission during its stay in Chile and in its final report, this case raises serious issues of freedom of association and human rights as they affect the exercise of trade union rights. The Commission indicated why, within its terms of reference, it was called upon to examine the various accusations of violations of these rights, particularly as regards the freedom, life and physical integrity of a large number of trade unionists.
    58. 58 With regard to the development of these aspects of the situation, the Committee considers that it should take note with interest of the legislative provisions introduced by the Government for the protection of the rights of the detainees, of the introduction of a procedure for legal recourse in order to ensure compliance with these and other measures referred to by the Government and, above all, of the activities carried out in this connection by high officials of the Judiciary and Ministry of Justice.
    59. 59 Since, on the other hand, the information supplied by the Government and the new complaints received indicate that a certain number of trade unionists are still imprisoned or detained and that new detentions have taken place recently, the Committee considers it necessary to request the Government to continue providing information on developments. Although the Government reiterates that the sentences and detentions referred to have nothing whatsoever to do with trade union activities, the continued detention of persons and, therefore, also of trade unionists by virtue of extraordinary powers provided for by legislation, without their being tried by a court of law, and the release of certain detainees, including trade unionists, on condition that they leave the country, do not conform with the principle which has been repeatedly emphasised by the Governing Body and the Committee that, in all cases, including cases where trade unionists are charged with political or criminal offences, the persons concerned should receive a prompt and fair trial by an independent and impartial judiciary. Attention should also be drawn to the fact, which has been frequently emphasised by the Governing Body and the Committee, that the detention of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights.