Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 211, Novembre 1981

1. 327. In a communication dated 2 June 1981, the Confederation of Private Employees of Chile (CEPCH) presented a complaint alleging the infringement of trade union rights in Chile. For its part the Government furnished its observations in a communication dated 13 August 1981.
2. 328. 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. The complainant's allegations

1. 329. The complaint concerns the dismissal of Mr. Walter Antognini Ibacache, one of the national leaders of CEPCH, and the declaration of his legal incapacity made by the Labour Directorate of the Ministry of Labour and Social Welfare.
2. 330. The complainant organisation explains that Mr. Antognini had been working at the National Vocational Training Institute (INACAP) since 16 September 1967. This Institute is a private undertaking which is dependent upon a public body the Production Development Corporation, the executive Committee of which includes representatives of the Ministry of Labour. Since May 1975, Mr. Antognini has been one of the national leaders of CEPCH, a fact which had been duly made known to the Labour Directorate and his employer.
3. 331. On 1 April 1981, i.e., on the eve of the company union elections, INACAP informed Mr. Antognini of his dismissal on grounds attributable to the operating requirements of the undertaking. CEPCH adds that INACAP had not given the statutory 30 days' advance notice and had decided to compensate this lack of advance notice by the payment of a sum of money, although such payments are not allowed under the law. As indicated in a report from the labour inspectorate attached to the complaint, Mr. Antognini obtained a majority of votes in the trade union elections of 2 April; in the presence of a labour inspector, he had a meeting with the chief of personnel of the undertaking who refused to reinstate him. Mr. Antognini then filed a complaint of unjustified dismissal with the competent courts.
4. 332. On 22 May 1981, the Labour Directorate declared that Mr. Antognini was not legally qualified to exercise the functions of leader of the company trade union since he no longer fulfilled the requirements for such a post established by the law. Mr. Antognini then lodged an appeal requesting that the decision to disqualify him be considered illegal.

B. The Government's reply

1. 333. The Government states firstly that INACAP is a private undertaking and that its administration management and financing are autonomous and independent from the Ministry of Labour and the governmental authorities.
2. 334. It points out that in accordance with Act No. 16.455 of 1961 and Legislative Decree No. 2200 of 1978 undertakings may terminate a contract of employment with their workers for one of the reasons mentioned in these texts. One of these reasons concerns grounds attributable to the operating requirements of the undertaking and is used to make adjustments in the size of the workforce in the light of production needs. Workers who are dismissed may appeal to the labour courts which, in the event of unjustified dismissals, may order the reinstatement of the workers concerned or, in the event of a refusal by the employer, order the latter to pay compensation equal to at least 30 days' earnings for each year and a half worked.
3. 335. In the present case, the undertaking made use of the dismissal procedure set forth above and the worker concerned has made an application which is currently before the civil courts for a declaration of unjustified dismissal.
4. 336. In conclusion, the Government states that no discriminatory or oppressive measures were taken against the worker in question. It adds that the decision of the court will be transmitted to the Committee as soon as it is delivered.

C. The Committee's conclusions

1. 337. The Committee notes that the present case concerns the dismissal of one of the leaders of the Confederation of Private Employees of Chile (CEPCH) by his employer, the National Vocational Training Institute (INACAP). This dismissal led to a declaration by the Labour Directorate concerning the legal incapacity of the worker to exercise his trade union functions.
2. 338. As regards the dismissal, the Committee is unable, on the basis of information currently at its disposal, to determine whether the worker was dismissed for economic reasons as stated by the employer and the Government, or whether the dismissal was the result of anti-trade union discrimination, as alleged by the complainant. The Committee considers that the text of the decision concerning the application made for a declaration of unjustified dismissal could provide it with additional information. It notes in this respect that the Government has indicated that the decision will be transmitted to the Committee as soon as it is delivered. However, the Committee can at this stage note that the worker concerned had been employed by the company for a period of thirteen years' had for the last six years been a trade union leader, and was dismissed on the eve of his election as leader of the company union a dismissal which was illegal according to the provisions of section 22 of Legislative Decree No. 2200 which requires the employer to obtain prior permission from a court before dismissing a trade union leader.
3. 339. As regards the declaration of legal incapacity the Committee notes that this decision was made in accordance with section 21 of Legislative Decree No. 2756 of 1979 respecting the organisation of trade unions, which stipulates that a person must, in order to be elected to the executive Committee of a company trade union, be employed by the undertaking concerned.
4. 340. In the particular circumstances of the case, the Committee cannot but reach the conclusion that the action thus taken by the company had the effect of impeding the right of a workers, organisation to elect its representatives in full freedom and was accordingly contrary to the principles of freedom of association.