Rapport intérimaire - Rapport No. 233, Mars 1984

COMPLAINTS PRESENTED BY THE SINGLE CENTRAL ORGANISATION OF CHILEAN WORKERS (EXTERNAL COMMITTEE) AND THE NATIONAL TRADE UNION CO-ORDINATING BODY OF CHILE

• COMPLAINTS PRESENTED BY THE SINGLE CENTRAL ORGANISATION OF CHILEAN WORKERS (EXTERNAL COMMITTEE) AND THE NATIONAL TRADE UNION CO-ORDINATING BODY OF CHILE
  474. 474 The complaints are contained in communications from the Single Central Organisation of Chilean Workers (External Committee) dated 10 February 1983 and from the National Trade Union Coordinating Body of Chile in May 1983. The Government replied in communications dated 11 May and 29 September 1983.
  475. 475 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. Allegations concerning freedom of association and collective bargaining legislation

1. 476. The complainants allege that some of the legislative provisions in force are contrary to the principles of freedom of association and collective bargaining. Thus, Act No. 18198 dated 31 December 1982 prescribes that in collective agreements concluded after this date, the employer may offer the same conditions of work existing on 31 December 1982 without any subsequent readjustability. In this way Act No. 18198 allows employers to prevent not only the readjustment of workers' wages when negotiations are initiated but also all future readjustments. This regulation is issued at a time when inflation for the coming year is expected to reach 50 per cent and is compounded by the fact that the minimum duration of a collective agreement is two years. In the same way, the salaries of public employees have been frozen since August 1981 in pursuance of Decree No. 3551 of that year.
2. 477. Likewise, Act No. 18196 dated 29 December 1982 prohibits trade unions from receiving financial aid from the undertakings to which their members belong as well as from foreign natural or legal persons; in the event of infringement provision is made for the application of penal sanctions and the reimbursement of the amounts unlawfully received. Furthermore, in the Diario Oficial (Official Gazette) of 18 August 1982, the Government published a list of 40 undertakings whose workers may negotiate but not go on strike, essentially because such undertakings are strategic establishments for national defence and security. These include the following undertakings; CODELCO (copper mining), Ferrocarriles del Estado (railways), Compañía de Teléfonos (telephones), ENTEL, SNAP (petroleum), LAN (air transport), CASCO (gas), Empresa Nacional de Explosivos (explosives), ENDESA (electricity), CHILECTRA and Banco del Estado (State bank).
3. 478. The Government states that the Constitutional Court has ruled that Act No. 18198 of 1982, which amends Legislative Decree No. 2200 respecting contracts of work and Legislative Decree No. 2758 respecting collective bargaining conforms to the law. This act was issued on the basis of considerations regarding the economic recession affecting all countries. In the present crisis, the country has not; been able to escape this recession and thus a system of automatic wage indexing would seriously compromise employment. The act had to take realistic account of this situation so as to avoid creating greater, unemployment.
4. 479. The Government states that the allegation concerning the;, suspension of readjustment of wages in the public sector is incorrect since remunerations were increased by 5 per cent in 1983; moreover, they will be further increased from 1 January 1984 by 15 per cent. In addition to the above-mentioned increases, three bonuses equivalent to 30 per cent of salary have been granted to public employees; two of these bonuses have already been paid and the third was due in November 1983.
5. 480. As regards workers who do not enjoy the right to strike, the Government states that, as in all other countries, undertakings exist in Chile in which workers may not strike because of the prejudice which this would cause to the community arising out of the nature of their activity. However, in Chile this consideration has been reconciled with the need to maintain justice in the field of labour and thus workers who may not go on strike settle disputes at the collective bargaining stage through arbitration which the employer may not refuse and to whose results he is bound.
6. 481. As regards the prohibition concerning contributions to trade union organisations from employers or foreign bodies, the Government points out that the trade union act comprises an adequate system of financing by means of ordinary and extraordinary contributions from its members which are automatically deducted from their remunerations. Trade union financing by undertakings and foreign bodies is prohibited. This is a basic premise of the regime of freely chosen membership which becomes effective only to the extent that the trade unions achieve their own goals by the diligent action of their leaders rather than on the basis of extraneous advantages such as those which would be possible through outside financing.
   • Furthermore, in this way acts of interference on the part of the employer, who could discriminate in favour of the trade union of his choice or one which is amenable to his influence, may be avoided.
7. 482. The Committee notes that Act No. 18198 of 31 December 1982 places important restrictions on collective bargaining, in particular as regards the indexing of remunerations. In this respect, noting that both the Government and the complainants have drawn attention to the existence of serious difficulties in the economic field, the Committee would like to point out that if, for compelling reasons of national economic interest, a government considers that wage rates cannot be fixed by collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period and that it should be accompanied by adequate safeguards to protect workers' living standards [See, for example, 230th Report, Case No. 1171 (Canada-Quebec), paragraph 162.]. To this end, the Committee would like to stress that Act No. 18198 does not establish a specific period of application and that none of its provisions makes it possible to suppose that it is a temporary act rather than one of an indeterminate duration. Furthermore, the Committee observes that the Government has not indicated whether measures have been taken to protect workers'. living standards. Therefore the Committee draws the attention of the, Government to the fact that the period of application of the, restrictions on collective bargaining as regards the indexing of wages established in Act No. 18198 should not exceed a reasonable period of' time and that such restrictions should be accompanied by adequate safeguards to protect workers' living standards.
8. 483. Furthermore the Committee notes that the Government states that the allegation concerning the suspension of wage indexing for workers in the public sector is incorrect since remunerations were increased by 5 per cent in 1983 and will be further increased by 15 per cent in January 1934 and that furthermore three bonuses equivalent to 30 per cent of salary have been awarded to public employees.
9. 484. As regards the strike prohibition in 40 undertakings, the Committee notes that according to the Government this is due to the prejudice which the holding of strikes in such undertakings would cause to the community. The Committee also observes that in the undertakings concerned collective bargaining disputes may be resolved through arbitration. The Committee has pointed out on a number of, occasions [See, for example, 226th Report, Case No. 1166 (Honduras), paragraph 343.] that, as one of the essential means through which workers and their organisations may promote and defend their occupational. interests, the right to strike may be denied or seriously; restricted only in public services or services essential in the strict sense of the term (those whose interruption would endanger the life, personal safety or health of the whole or part of the population). The Committee considers in this respect that some of the undertakings mentioned by the complainant in which strikes are prohibited do not appear to provide essential services in the sense expressed above. The Committee therefore draws the attention of the Government to the need to limit the list of undertakings in which strikes are prohibited (cf. Diario Oficial (Official Gazette) dated 1S August 1982) to those which provide essential services in the strict sense of the term.
10. 485. As regards the prohibition for trade unions to receive financial assistance from the undertakings to which their members belong, or from foreign natural or legal persons (Act No. 18196), the Committee considers that although the first prohibition is understandable from the point of view of the principle of the non-interference of employers and their organisations in workers' organisations, the second prohibition may place an important restriction on the right of trade union organisations to affiliate to higher level international organisations (federations and confederations) and to receive financial assistance from these organisations. The Committee asks the Government to take measures with a view to amending this provision.
    • Allegations concerning the arrest of trade union leaders
11. 486. The complainants allege that on 30 September 1982, following a demonstration held in the city of Concepción to demand the return of Chilean exiles, Maria Eugenia Darricarrere Andreo, leader of the Trade Union Association of Workers of Chile (AGECH) and Rend Carvajal Zúñiga, labour adviser of the coal workers' trade unions, were detained and falsely accused of having placed a fire bomb in the vicinity of the City Hall of Concepción. Some days later José Ortíz Aravena, President of the AGECH, was detained for 19 hours and tortured. According to the latter, Mrs. Darricarrere was subjected to physical ill-treatment.
12. 487. The complainants also allege that in November or December 1982 the following trade union leaders were arrested. Ernesto Vega Alvarez, Domingo Tapia and Juan Sáez, and in January 1983, Lorenzo Boroa, Maria Luisa Traipe and Manuel Espinoza, who were also trade union leaders.
13. 488. The Government states that on 11 October 1982 Mrs. Maria Eugenia Darricarrere Andreo and Mr. Rend Carvajal Zúñiga were arrested on the orders of the Second Military Court of Concepción, for having violated the act respecting the control of arms. The court proceeded to issue a resolution committing them for trial considering that there were justified grounds for believing that they had participated in the crime when they where caught in possession of explosives in the lavoratories of the municipal stadium of Concepción. Mr. Rend Carvajal Zúñiga was released by order of the court in December 1982.
    • The Martial Court ordered the release of Mrs. Maria Eugenia Darricarrere Andreo on 10 February 1983. Mr. José Ortiz Aravena, who is not president of the AGECH as the complainants incorrectly state, was arrested for carrying out clandestine political activities but he was released after the court took a statement from him.
14. 489. The Government adds that it has no information on the alleged detention of Ernesto Vega, Domingo Tapia and Maria Luisa Traipe and that Juan Sáez and Lorenzo Boroa were detained and immediately released after verification of their domicile, for having actively participated in demonstrations to disturb the public peace and instigate disorder. Manuel Espinoza was arrested for having been caught in possession of small metal tacks which, when thrown in the streets prevent vehicles from passing by sticking to their tyres and bursting them. He was released after a statement had been taken and his domicile verified.
15. 490. The Committee observes that according to the statements of the Government Mr. José Ortiz Aravena and Mrs. Maria Eugenia Darricarrere and Manuel Espinoza were arrested for acts which were not related to trade union activities. The Committee also notes that the Government states that it has no information on the alleged detention of Ernesto Vega, Diego Tapia and Maria Luisa Traipe. The Committee regrets that the Government has not replied to the allegations of torture or physical ill-treatment suffered by Mrs. Maria Darricarrere and Mr. José Ortiz Aravena. The Committee requests the Government to carry out an investigation into these matters and to inform it of the results.
16. 491. As regards the arrest of Messrs. Juan Sáez and Lorenzo Boroa, the Committee notes that, according to tile Government, these persons had participated actively in demonstrations to disturb the public peace and instigate disorder. The Committee regrets that tile Government has not given greater details on these demonstrations. However, since tile persons in question were immediately released :after verification of their domicile and Chat the alleged events date back to January 1983, the Committee considers that this aspect of tile case calls for no further examination.
    • Allegations concerning tile dismissal of trade union leaders and trade unionists
17. 492. The complainants allege that five trade union leaders of tile Celulosa Arauco undertaking (Messrs. Leopoldo Pinto, Eduardo Sepúlveda, Jaime Bohme, José Araneda Alarcón and Miguel Medina) were dismissed after having been accused of instigating a strike of five hours in September 1982 in which 336 members of the first shift refused to start work. In the same way, in the Calzados Gino undertaking, two leaders of tile plant trade union Messrs. Jorge Venegas and Mauricio Rodríguez and two workers were dismissed for having refused to sign a document in support of a reduction in tile sales commissions which are part of tile salesmen's wages. Furthermore, tile owner of tile Envases Plásticos Campos undertaking dismissed tile trade union committee, composed of Sixto Walter Manríquez, Emeterio González and José Rivera, just after tile establishment of the trade union, as well as 12 workers for having collaborated in setting up the trade union. The complainant states that tile trade union of this undertaking was set up because of irregularities committed by tile owner in carrying out labour legislation.
18. 493. The complainants also allege the dismissal of Efraín Plaza and Pedro Gutiérrez (president and vice-president of the Union of Building Workers, Engineers, Technicians and Administrators) in May 1982, tile dismissal of Arsenio Angulo (national leader of tile Confederation of Gastronomic Workers) in June 1982, tile dismissal of Enrique Morgado and Jorge Pulgar (president and secretary of tile Cristalerías Toro S.A. trade union) in August 1982; and the dismissal of three leaders of tile Croupiers' Trade Union of the casino of Viña del Mar in February 1983. In September 1982 six leaders of General Motors allegedly ceased to be workers of the undertaking as a result of pressure brought to bear by the latter.
19. 494. As regards the dismissal of the trade union leaders in the Celulosa Arauco y Constitución undertaking, the Government states that on 8 September 1982, this undertaking informed the Departmental Labour Inspectorate of Arauco of the termination of the employment contracts of the trade union leaders of the Workers' Trade Union No. 1 of the Celulosa Arauco y Constitución undertaking Messrs. Leopoldo del Carmen Pinto Arriagada, Eduardo Adolfo Sepúlveda da Cabrera, Miguel Enrique Medina Mendoza, José Tomás Araneda Alarcón and Jaime Eduardo Bohme Barroso. The termination of their work contracts was due to their organisation of and participation in an illegal strike held on 6 September 1982. The matter of dismissal was taken to the courts of justice by only Messrs. Leopoldo del Carmen Pinto Arriagada and Eduardo Adolfo Sepúlveda Cabrera, who reached an agreement with the undertaking (a copy of which is included by the Government) to settle the claim of unjustified dismissal out of court, whereby the undertaking was to pay Mr. Sepúlveda Cabrera the sum of 101,358.65 dollars and Mr. Pinto Arriagada the sum of 74,258.48 dollars. On 21 December 1982, 69 members of tile trade union requested that a date be set to elect a new trade union committee and on 19 January 1983 the election was held resulting in tile appointment of a new trade union committee.
20. 495. As regards the dismissal by the undertaking Calzados Gino Ltda. of Messrs. Jorge Venegas and Mauricio Rodríguez and two other workers for having refused to agree to reductions in their sales commissions, according to information from the labour inspectorates of Santiago and Santiago Oriente, no complaints or denunciations have been made by workers or trade union leaders of the above-mentioned undertaking regarding dismissals or the reduction in their wages.
21. 496. As regards the Envases Plásticos Campos undertaking, the Government states that on 2 November 1982, the trade union leaders Messrs. Emeterío González Guzmán, Sixto Walter Manríquez Contreras and José Arturo Rivero Ortíz appealed to the Labour Inspectorate regarding their dismissal by their employer. On 16 November 1982 a labour inspector was sent to the undertaking and proceeded to impose an administrative fine for the infraction in question. The trade union leader Mr. Sixto Walter Manríquez Contreras was reinstated on 17 March 1983; he is now working normally in the undertaking and he was fully compensated for the period between tile date of his dismissal and his reinstatement. Mr. Emeterio González Guzmán was reinstated and was paid compensation for the period during which lie was dismissed; he worked in the undertaking for one week after which he did not return. As regards Mr. José Arturo Rivera Ortiz, although the employer offered to reinstate him in his workplace, it is known that he is working in an interprovincial transport company, as a result of which it has not been possible to locate him regarding his reinstatement in the Envases Plásticos Campos undertaking.
22. 497. The Government also states that it has no information on the alleged dismissal of Efraín Plaza, Pedro Gutiérrez, Arsenio Angulo, Enrique Morgado and Jorge Pulgar, and that labour legislation currently in force allows workers to appeal to the courts when they feel that they are affected by a measure of this kind. The Government reiterates this last statement regarding the alleged dismissal of leaders of the Croupiers' Trade Union and the General Motors Trade Union.
23. 498. As regards the dismissal of five trade union leaders in the Celulosa Arauco y Constitución undertaking, the Committee notes that two of the dismissed leaders reached a financial agreement with the undertaking whereby the latter would pay certain benefits and the leaders would withdraw their action for reinstatement lodged before the courts. As regards the other three trade union leaders dismissed by the above-mentioned undertaking, although the Committee notes that the dismissal was the result of their organisation of and participation in an illegal strike and that the persons concerned did not take their case to court, it regrets that the Government has not indicated the motives for which the above-mentioned strike was declared illegal and that for this reason the Committee is unable to reach conclusions based on a full knowledge of the events.
24. 499. As regards the allegation concerning the dismissal of two trade union leaders and two workers of the Calzados Gino undertaking for having refused to sign a document in support of a reduction in sales commissions, the Committee notes that according to the Government no denunciations or complaints were made regarding dismissals or the reduction of remunerations in the above-mentioned undertaking.
25. 500. The Committee notes that the labour inspectorate applied an administrative fine for the dismissal of the three trade union leaders of the Envases Plásticos Campos undertaking, that two of the leaders were reinstated and that the third was offered reinstatement. The Committee observes, however, that the Government has not provided information on the dismissal of 12 other workers in the said undertaking. Therefore, given the fact that the complainants allege that these workers were dismissed for having collaborated in setting up a trade union within the undertaking, the Committee notes in general that no person should be dismissed or be subject to other prejudicial measures regarding employment for carrying out legal trade union activities.
26. 501. The Committee observes finally that with regard to the other alleged dismissals, the Government has stated that it has no information and that legislation allows workers who feel that they have been affected by a measure of this kind to appeal to the courts. In these circumstances, and since the complainants have provided no concrete information on the acts which allegedly led to the dismissals in question and in as far as such alleged dismissals occurred in any case more than one year ago, the Committee believes that these allegations call for no further examination.
    • Allegation concerning the disqualification of a trade union leader
27. 502. The complainants allege the disqualification of Mr. Victor Mendoza Véjar as leader of Workers' Union No. 6 of the National Coal Company Enacar de Lota, contained in a resolution from the administrative authority dated 10 June 1982, which gave no explanation for the disqualification.
28. 503. The Government states that, by resolution No. 354 dated 10 June 1982, the Labour Directorate disqualified Mr. Victor Mendoza Véjar from his post of director of Workers' Union No. 6 of the National Coal Company for failing to comply with the provisions of section 21, para. 6, of Legislative Decree No. 2756, which establishes that a trade union director must "have a length of service as a member of the trade union, as indicated in its statutes, and which may not be less than six months, except in cases where the trade union has existed for a shorter period of time". In fact, it was established that Mr. Mendoza Véjar had joined the union on 1 December 1981 and that the trade union election was held on 21 March 1982. As a consequence, Victor Mendoza had been a member of the above-mentioned trade union for just over three and a half months when he was elected its director. The administrative resolution was the subject of an appeal in the courts and to date no decision has been given since the claimant has not furnished the documents to support his claim.
29. 504. The Committee observes that the disqualification of Mr. Mendoza Véjar as a trade union leader was made on 10 June 1982 by resolution of the Labour Directorate pursuant to section 21, para. 6, of Legislative Decree No. 2756 which establishes as a requisite that any trade union leader must have a length of service as a member of the trade union of not less than six months. In this respect, the Committee would like to point out that this requisite supposes an important restriction of the right of workers' organisations to elect their representatives in full freedom. Therefore, whilst it regrets the measure of disqualification as trade union leader applied to Mr. Mendoza Véjar on 10 June 1982, the Committee requests the Government to take measures with a view to amending section 21, para. 6, of the legislative decree in order to guarantee fully the right of workers' organisations to elect their representatives in full freedom.
    • Allegation concerning the obstruction of a press conference
30. 505. The complainants allege that the judicial authorities erroneously dismissed an appeal which had been made against persons who prevented the leaders of four trade union organisations (Trade Union No. 1 of American Screw, S.A., Trade Union No. 2 of Laboratorio Chile, S.A., Trade Union No. 1 of Good Year, Planta Nylon, and the Industrial Assembly Inter-Undertaking Trade Union) from holding a press conference to provide information on the serious labour situation confronting workers and their trade union leaders.
31. 506. The Government states that the Ministry of the Interior has no information concerning alleged action to prevent the holding of a press conference.
32. 507. The Committee notes that the complainants have not indicated the date or place of the press conference to which they refer and that although they have pointed out that the judicial authorities rejected an appeal made against those persons who prevented the holding of the press conference, they have not enclosed a copy of the decision or given the grounds upon which the judicial decision was based. In these circumstances, and since the Government has stated that it has no information on the present allegation, the Committee considers that this aspect of the case requires no further examination.
    • Allegation concerning the expulsion from the country of a trade union leader
33. 508. The complainants allege that the Government expelled Mr. Carlos Podlech, President of the Association of Farmers of Valdivia from the country, for statements which he had made concerning the serious situation confronting employers in this sector.
34. 509. The Government states that on 17 February 1983 the measure against Mr. Carlos Podlech was lifted and he was permitted to return to the national territory.
35. 510. The Committee notes that the Government has not made observations on the alleged motives for the expulsion of Mr. Podlech from Chile (statements regarding the serious situation affecting employers in the agricultural sector). As a consequence, although it notes that on 17 February 1983 the expulsion order against Mr. Podlech was revoked, the Committee notes that the expulsion from the country in which they live of trade union or employers' leaders for activities related to the exercise of their functions as such is not only contrary to human rights but is, furthermore, an interference in the activities of the organisation to which they belong.
    • Allegation concerning the intimidation of a trade union leader
36. 511. The complainants allege that the Ministry of the interior lodged a complaint with the courts against Mr. Hernol Flores, President of the ANEF, for his having said that the Government knew who the assassins of Mr. Tucapel Jiménez, ex-President of the ANEF were. Following pressure and intimidation, Mr. Flores was obliged to withdraw his allegations and give explanations to the Government.
37. 512. The Government states that in October 1982 the Court of Appeals of Santiago appointed one of its magistrates to prepare an indictment against Mr. Hernol Flores Opazo who, in a press conference given in the premises of the ANEF on 15 October had allegedly made offensive remarks against the Supreme Government, in violation of Act No. 12927. After interviewing various persons present at the press conference and Mr. Flores himself, the magistrate concluded that there had been no violation of legislation in force. Mr. Flores, in any event was not deprived of his liberty and no measure of restriction is being applied against him.
38. 513. The Committee notes that the complainants have not indicated in what way pressures and intimidation were brought unless they mean the lodging of a complaint before the courts against the trade union leader Mr. Hernol Flores. The Committee also observes that the Government has indicated that an indictment was prepared against this trade union leader for having made remarks during a press conference which were offensive to the Supreme Government.
39. 514. In these circumstances, since no measure restricting the freedom of Mr. Flores was ordered and since the legal proceedings were concluded, the Committee considers that this aspect of the case requires no further examination.
    • Allegations concerning the refusal of an undertaking to recognise two trade union leaders
40. 515. The complainants allege finally that the undertaking Good Year of Chile S.A.I.C. of Maipú has paralysed collective bargaining by attempting to freeze wages between November 1982 and November 1984 and suppressing the indexing of wages and cash allowances. The arguments used by the undertaking are that two trade union representatives (Oscar Pino Morales and Pedro Báez Salinas) are "undesirable and' highly argumentative persons". Furthermore, according to the resolution of the Labour Inspectorate, these persons are not workers in the undertaking since they were dismissed in accordance with section 15 of Legislative Decree No. 2200 dated 31 July 1981.