Rapport intérimaire - Rapport No. 244, Juin 1986

1. 296. The Committee has examined this case on several occasions, most recently at its February 1986 meeting, when it presented an interim report to the Governing Body. (See 243rd Report, paras. 447-488, which was approved by the Governing Body at its 232nd Session (March 1986).)
2. 297. Since then, the ILO has received the following communications from the complainants: the World Federation of Trade Unions (WFTU): 12 February 1986; the International Confederation of Free Trade Unions (ICFTU): 17 February, 4 and 24 March 1986, 4 and 25 April 1986 as well as 2 May l986; the Dockers' Union No. 2 of San Antonio: 31 March 1986; the Trade Unions International of Textile, Clothing, Leather and Fur Workers: 18 April 1986; and the World Confederation of Organisations of the Teaching Profession (WCOTP): 5 May l986. The Government, for its part, sent its observations in communications of 6 March, 9 April and 7 May 1986.
3. 298. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), nor the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. Previous examinations of the case

1. 299. The allegations still pending in this case concern the arrest and indictment of trade union leaders which occurred following a Protest Day held on 4 September 1985; the arrest of union leaders from the port sector during a demonstration; the banishment of trade union members and the dismissal of trade union leaders, particularly in the port and health care sectors. In addition, new allegations reported the death of four persons during the demonstrations of 5 and 6 November 1985, the arrest of Rodemil Aranda, leader of the Trade Union of the Caletones mines, as well as the annulment of the elections held within the Copper Workers' Confederation and the confiscation of its assets.
2. 300. At its March 1986 Session, the Governing Body approved the following conclusions of the Committee:
   • a) Regarding the arrests and charges made following the Protest Day on 4 September 1985, the Committee notes that 11 of the 12 trade union officials who were initially arrested and charged have been released on bail and that the charge against one of them has been dismissed. While noting that the charges were brought on the basis of provisions relating to the organisation of demonstrations on the public thoroughfare and illegal strikes, the Committee stresses that the prohibition on the calling of strikes by federations and confederations is incompatible with the principles of freedom of association. It recalls that the occupational and economic interests which workers defend by resorting to strikes concern not only better conditions of work or collective claims of an occupational nature, but also the search for solutions to economic and social policy questions. The Committee requests the Government to supply information on developments in the current trials and their outcome, as soon as judgements are handed down.
   • b) Regarding the arrest of trade union officials in the port sector, the Committee notes that the persons concerned were released after the Minister of Labour stood bail for them. It requests the Government to supply information on developments in the proceedings initiated against them.
   • c) Regarding the banishment of other trade unionists, the Committee firmly requests the Government once again to take the necessary steps to ensure that such measures, which do not provide for any judicial guarantees, are not taken again.
   • d) Regarding the dismissal of trade union officials, the Committee notes that one trade unionist was dismissed for violation of the State Security Act and expresses its concern that workers can lose their jobs after being arrested or sentenced for having committed acts which the national legislation deems to be crimes, but which, according to generally recognised principles, could be considered as normal and lawful trade union activities.
   • e) The Committee requests the Government to supply, as soon as possible, its observations on the most recent allegations, namely the death of four persons during demonstrations on 5 and 6 November 1985, the arrest of Rodemil Aranda, leader of the Trade Union of the Caletones mines, the dismissal of trade union leaders in the port and health care sectors (Manuel Jerez Alvarado and Ricardo Vacarezza), the cancellation of the Copper Workers' Confederation elections and the confiscation of its assets.

B. New allegations

1. 301. In their respective communications of 12 and 17 February 1986, the WFTU and the ICFTU describe the measures taken against the Copper Workers' Confederation (CTC).
2. 302. The WFTU states that the Government ordered the closing of the records centre of the CTC, an organisation with over 30,000 members. According to the WFTU, other measures taken by the authorities were intended to prevent the CTC president, Rodolfo Seguel, as well as other officials from exercising their trade union functions and using the Confederation's premises and funds. According to the WFTU, the Government claims that these officials may no longer hold trade union office since they are no longer employed in the mining industry, having been dismissed in 1983 following a strike they had organised to protest against the deterioration in the standard of living of copper miners.
3. 303. According to the ICFTU, the measures taken by the Government have resulted in the immobilisation of the CTC following the court action barring its leaders from entering into contracts, performing administrative acts, holding meetings and making statements. With its communication, the ICFTU encloses a technical report prepared by a CTC legal adviser describing a number of summary measures taken by the 20th Civil Court of Santiago, at the request of the Labour Directorate. Such measures:
   • - forbid the present executive of the CTC from entering into contracts or performing administrative acts and any other operations involving all or part of the property and assets of the CTC;
   • - advise financial and banking institutions throughout the country to refrain from opening current or savings accounts and from paying cheques or making payments on behalf of the CTC;
   • - advise the public as well as public and private enterprises to refrain from entering into legal agreements with the present executive of the CTC;
   • - advise the National Copper Undertaking not to accept or consider any demand, claim or resolution presented by the present executive of the CTC;
   • - forbid this executive from convening or holding trade union meetings, or participating in such meetings on behalf of the CTC;
   • - likewise, forbid the executive from claiming to represent the CTC in any public or private meeting, national or international forums, meetings of other associations, publication or in any print, radio or television interview;
   • - forbid the executive from removing from the CTC headquarters any document having a direct or indirect bearing on the Confederation's activities. For such purpose, seals will be affixed to all premises where such documentation is kept.
4. 304. According to CTC's legal adviser, the CTC's activities have been brought to a standstill as a result of a judgement that is wide open to criticism for the following reasons: the use of civil proceedings, the existence of a legal irregularity in the Labour Directorate's request, the fact that the court action exceeds the competence of the Labour Directorate, the recourse to summary proceedings, the absence of any guarantee or bond furnished by the complainant, as required by law, and the lack of proportion between the effect of the measures resulting from the judgement and the legal interest protected.
5. 305. In its communications of 4 and 24 March 1986, the ICFTU alleges that on 28 February 1986, Sergio Troncoso and Reinaldo Alvarez, President and Treasurer respectively of the Confederation of Building Workers were arrested, imprisoned and charged because the organisation's executive council had addressed a letter to the third chamber of the Supreme Court, protesting against the court's decision to leave the alleged killers of a teachers' union official at large. According to the ICFTU, these officials are liable to 61 days' to five years' imprisonment.
6. 306. In its communication of 31 March 1986, the Dockers' Union No. 2 of San Antonio alleges that an October 1985 strike in the maritime sector was followed by repressive action against 200 workers of loading and unloading enterprises who have not been able to find work for the past five months. The Agunsa enterprise struck from its lists eight workers it considered dangerous to its interests. The COSEPORT agency notified the SIRMAPORT trade union that it would no longer hire workers belonging to the organisation unless three of its present leaders were dismissed from their posts. The workers then requested the resignation of these leaders, replacing them by persons who enjoy the employer's absolute confidence. The former leaders are now unemployed. Moreover, the President of the SIRMAPORT union, Carlos Carrasco, has been unable to find work for five months, since all enterprises have refused his requests for employment on the grounds of his having been a trade union leader. Such is also the case with 88 members of the Dockers' Union No. 2 of San Antonio, whose President and Secretary had been accused of being "union agitators".
7. 307. In its communication of 4 April 1986, the ICFTU reports that Juan Bustos Araneda, an official of the Democratic Central Organisation of Workers (CDT), was abducted by armed civilians on 25 March. The ICFTU alleges that during his detention, Mr. Bustos suffered physical and psychological mistreatment and was questioned on the political and trade union activities of the CDT officials. He was found on 27 March in the Concepcion neighbourhood, in poor health and showing evidence of beatings and burn marks.
8. 308. In its communication of 25 April 1986, the ICFTU alleges that on 18 April heavily armed police forces surrounded the MADECO trade union offices to prevent the holding of the first national conference called by the National Workers'Association.
9. 309. In its communication of 18 April 1986, the Trades Union International of Textile, Clothing, Leather and Fur Workers alleges that by means of Decree No. 1360 of 29 November 1984, published on 19 March 1986, the Government transferred the assets of seven trade union organisations that had been declared illegal in October 1978, including the National Textile Federation, to a state body, the Training and Employment Service.
10. 310. In its communication of 2 May l986, the ICFTU reports that the 1 May celebration organised by the CNT was banned and that the police and the military had opened fire on the demonstrators. According to the ICFTU, l20 were injued and 585 people were arrested, among them Manuel Bustos (later released), Jorge Millan and Lucia Sandoral of the CNT. In addition, the offices of the CNT and its affiliates were searched. For its part, the WCOTP alleges that armed police entered the premises of the Professional Association of Chilean Teachers (AGECH) in which May Day was being celebrated; furniture, machinery and documents were destroyed and 56 persons were arrested. Nineteen people, including Luis Gutiérrez and Pavlisa Mora Drago (members of the AGECH Executive Committee) are still in detention.

C. The Government's reply

1. 311. In its various communications, the Government furnished its observations on several allegations pending in this case: the charges laid against trade union leaders, the arrest of Rodemil Aranda Flores, the dismissal of Manuel Jerez Alvarado, the measures taken following the elections held within the Copper Workers' Confederation and the charges brought against the leaders of the Confederation of Building Workers.
2. 312. As regards the accusations levelled against the 11 trade union leaders following the protest day on 4 September l985, the Government indicates that the case is at the stage of preparatory examination. All the accused are at present free.
3. 313. On the subject of the measures taken against trade union leaders in the port sector, the Government states that no charges have been preferred against these persons. It explains that fines imposed for offences against public order correspond exactly to the amount paid to be released on bail. The Government recalls that the bail was in this case paid by the Ministry of Labour.
4. 314. As regards the arrest of Rodemil Aranda Flores, the Government states in its communications of 6 March and 7 May 1986 that this person is not an employee of the El Teniente Division of the National Copper Undertaking. He was arrested on 4 December 1985 for having violated the Arms and Explosives Control Act, and more specifically, for the unlawful possession of explosives. This person is currently being held in the correctional centre of Rancagua. His application for release on bail was agreed on two occasions by the Military Prosecutor, but the Court Martial in both cases cancelled the decision.
5. 315. As regards the dismissal of Manuel Jerez Alvarado, the Government states that on 3 April 1980 this person signed a contract for work as a deep-sea fisherman with the "Viento Sur" fishing enterprise. On 22 July 1985, Jerez Alvarado was elected trade union leader while the workers were lawfully on strike, although he was not a member of the union. He joined the union shortly after having been elected as a leader. The enterprise was not notified of his appointment until 20 August 1985. On 8 August 1985, the enterprise informed the maritime authorities and the labour inspectorate that this worker had insulted and threatened physical assault against the captain of the vessel on which he was employed. On 12 August 1985, the enterprise terminated Jerez Alvarado's work contract. On 6 September 1985, he filed an appeal against unjustified dismissal before the Second Civil Court of Talcahuano. The parties did not reach agreement and the enterprise has requested the court to authorise the dismissal.
6. 316. As regards the allegation concerning the dismissal of Mr. Ricardo Vacarezza, the Government indicates that the health services are autonomous and may engage personnel and terminate their employment in accordance with the law. This individual was a surgeon in the employ of the Eastern Metropolitan Health Service for 22 hours a week, under a contract for a limited period which expired on 3l December l985. According to the Government, there was no arbitrary dismissal involved on the part of those in authority, but simply the coming to an end of a fixed term contract.
7. 317. As regards the measures taken following the elections within the Copper Workers' Confederation, the Government explains that the Labour Directorate, acting on the authority granted to it by the law (section 5 of Decree No. 2 of 1967), requested the 20th Chamber of the Santiago Civil Court to issue a series of injunctions. The judge handling the case issued a number of injunctions with a view to protecting the Confederation's assets, as well as those of its member unions, as well as the validity of the act and contracts of the organisation's executive. Therefore, the Government concludes, the measures in question are not administrative but judicial in nature.
8. 318. The Government states that the adoption of such measures is justified in view of the violations of current labour legislation. Thus, the Government states that by a resolution dated 6 November 1984, the Labour Directorate declared five officials of the No. 6 works union of the El Salvador Division of CODELCO to be legally incompetent to exercise trade union functions, since they had been dismissed by the enterprise in June 1983. Four union officials of the No. 1 works union of the El Salvador Division of CODELCO were likewise declared legally incompetent on the same grounds. The appeals filed by these persons were rejected by the Supreme Court on 2 December 1985, on the grounds that they were no longer members of the enterprise or of the union, conditions which, according to trade union law and union regulations, are required of persons holding office. Following the Supreme Court's decision, the persons who had received the next highest number of votes after those ruled ineligible were appointed to occupy the vacant positions as union leaders. Pursuant to trade union legislation, these persons should have been admitted to the Copper Workers' Confederation assembly as elected leaders of a member union: however, they were not allowed to participate in the Confederation's congress.
9. 319. On 12 January 1986, the Copper Workers' Confederation elected a new executive, without permitting these lawfully appointed officials to participate in the voting. On the contrary, it was the former officials who had been declared legally incompetent who participated in the elections. According to the Government, these constituted grounds for the election to be declared null and void in a court of law.
10. 320. Pursuant to section 19 of the by-laws of the Copper Workers' Confederation, its officials are elected by the executives of its member unions. Thus, the Confederation's by-laws were infringed. Such was also the case in connection with Rodolfo Seguel, who was elected President of the Confederation, despite the fact that he is legally incompetent to hold the post, having been dismissed by the CODELCO enterprise.
11. 321. Lastly, the Government states that four of the persons elected to the national executive council of the Copper Workers' Confederation (Rodolfo Seguel, Manuel Rodriguez, Sergio Barriga and Raúl Montecinos) were not officials of member organisations, in violation of the organisation's by-laws and the law.
12. 322. In summary, the Government concludes that the elections were tainted by a threefold infraction of current legislation and union by-laws; in the first place, persons not employed in the enterprise, and therefore declared incompetent to hold office, were allowed to vote; secondly, the lawful officials of member unions were not allowed to vote; and lastly, persons who were neither union officials nor workers in the enterprise were elected.
13. 323. The Government adds that it is not true that these elections were void because their nullity must be declared by the courts, and the elections appear as valid until such nullity has been pronounced. Nor is it true that the Confederation's funds, accounts and assets were confiscated. The judge merely issued certain injunctions in accordance with the Civil Procedure Code. Furthermore, certain of these injunctions were rescinded by a decision of the First Chamber of the Santiago Court of Appeals, following an appeal filed by the Confederation's attorneys. This enabled the Confederation to meet its payroll and make other urgent payments.
14. 324. Furthermore, Luis Alamos, official of the No. 1 company union of the El Salvador Division of the CODELCO enterprise filed a complaint before the 28th Chamber of the Santiago Civil Court against Rodolfo Seguel and the Copper Workers' Confederation alleging that he was not allowed to participate in or vote at the Confederation's congress, in violation of the by-laws and the law.
15. 325. As regards the charges against two officials of the Confederation of Building Workers, the Government explains that towards the end of January 1986 the executive of this Confederation sent a letter to the judges of the Third Chamber of the Supreme Court, following a sentence passed by this chamber in a criminal matter. The Court examined the letter in plenary session and found that it slandered the judges. Consequently, it requested the Santiago Court of Appeal to institute proceedings for contempt of court, pursuant to sections 263 and 264 of the Penal Code. The judge responsible for investigating this matter ordered the arrest and indictment of Sergio Troncoso Cisternas and Reinaldo Alvarez, on the grounds that an offence had been committed and that the evidence indicated that these two persons had participated in the offence either as authors or accessories. An appeal filed by the defence against the indictment was rejected by the First Chamber of the Court of Appeal, but the accused were nevertheless released on bail. The Government stresses that it did not intervene in these proceedings since they were initiated at the request of the Supreme Court itself.
16. 326. Lastly, the Government makes a general statement in its communication of 7 May l986 on the subject of the concepts of demonstrations of protest and strikes to which the Committee had referred in its previous report. The Government is of the view that it is not possible to characterise as strikes demonstrations in public thoroughfares which paralyse all activities. It reaffirms that protests involving violence are not designed to seek solutions to questions of economic and social policy but to destablise Government by rendering the country ungovernable.

D. The Committee's conclusions

1. 327. Following the Committee's last examination of the case at its February 1986 meeting, the allegations still pending concerned the indictment of trade union leaders following a Protest Day held in September 1985, and of officials of the port sector organisations for dis turbances on the public thoroughfare; the death of four persons during the demonstrations of 5 and 6 November 1985; the arrest of Rodemil Aranda, an official of the Industrial Union of the Caletones mines; the dismissal of trade union leaders in the port and health care sectors, and lastly, measures taken following the elections of the Copper Workers' Confederation. Since then, new allegations have been presented concerning the indictment of two leaders of the Confederation of Building Workers, the dismissal of workers and trade union leaders in the docks sector, the arrest of an official of the Democratic Central Organisation of Workers, the intervention of law enforcement agents to prevent the holding of a national trade union conference, the transfer to a state body of the assets of organisations declared to be in violation of the law, and the numerous arrests and searches of trade union premises at the time of the 1 May celebrations.
2. 328. The Committee notes that the proceedings against 11 trade union leaders following the Protest Day of September 1985, and against the officials of port sector organisations for disturbances on the public thoroughfare are at the stage of preparatory examination. The Committee requests the Government to supply information on developments in the current trials and their outcome, as soon as the judgements are handed down. As regards trade union leaders in the port sector, the Committee notes that there are no charges against them.
3. 329. The Committee again requests the Government to supply information on the death of four persons during the demonstrations of 5 and 6 November 1985. In particular, it requests the Government to indicate whether an independent investigation has been carried out into this matter.
4. 330. As regards the arrest of Rodemil Aranda, the Committee notes that he was arrested and tried for the possession of arms and explosives. The Government also furnished detailed information on the types of explosives found at Mr. Aranda's home. Since it considers that the charges against Mr. Aranda cannot be considered to have any relation whatsoever to trade union activities, the Committee is of the view that this aspect of the case does not call for further examination.
5. 331. As regards the dismissal of Manuel Jerez, an official of the Inter-enterprise Ports Union of the province of Concepción, the Committee notes that, according to the Government, this person was dismissed for having insulted and threatened physical assault against a superior. The Committee notes that the matter appears still to be before the courts. The Committee therefore requests the Government to furnish information on developments in the proceedings. As regards the dismissal of Ricardo Vacarezza, President of the Metropolitan Medical School, the Committee notes that this person's contract expired on 3l December l985.
6. 332. As regards the measures taken following the elections held within the Copper Workers' Confederation, the Committee notes that, according to the Government, there have been three infractions of the legislation and by-laws: the participation in the voting by persons not qualified to vote since they were neither workers in the enterprise nor officials of member trade unions; the exclusion from the voting of legally appointed officials of member trade unions, and the election of persons legally incompetent to hold office as trade union leaders.
7. 333. The Committee notes that the central issue in this matter arises from the obligation imposed by Chilean trade union legislation that requires elected trade union officials to be workers in the enterprise (section 21 of Legislative Decree No. 2756 of June 1979). In this connection, it has always been the Committee's opinion, in particular in a case concerning Chile (see 185th Report, Case No. 823, para. 99), that legal provisions that require all trade union leaders to belong to the occupation or the enterprise in which the organisation is active may endanger the exercise of trade union rights since, as shown by the case in point, the dismissal of a worker who holds a trade union office may bar him from office, undermine the organisation's freedom of action and the workers' right to elect their representatives freely, and even give the employer the opportunity to interfere. The Committee must recall moreover that it has had occasion in the past to examine allegations concerning the dismissal of trade union leaders by the CODELCO enterprise. (In particular, see 230th, 233rd, 234th and 238th Reports, Case No. 1212.) At that time, the Committee considered that there was ample evidence that these dismissals were motivated by anti-trade union sentiment, and that Rodolfo Seguel, in particular, had been the subject of serious anti-trade union discrimination. (See 230th Report, paras. 653 and 658.) In these circumstances, the Committee considers that the disqualification of trade union leaders elected at the most recent congress of the Copper Workers' Confederation constitutes a serious violation of the right of organisations to elect their representatives freely. The Committee also considers that in order to ensure that this right is respected, the Government should amend the trade union legislation in order to allow persons who have previously worked in the occupation or enterprise in question to stand for election and to lift the requirements concerning membership of the occupation or the enterprise for a reasonable percentage of the trade union leaders.
8. 334. As regards the indictment of two leaders of the Confederation of Building Workers, the Committee notes that judicial proceedings for slander and contempt of court were initiated, not at the Government's request, but pursuant to a decision of the Supreme Court meeting in plenary session. The Committee notes that the letter sent by the executive council of the Confederation of Building Workers to the Supreme Court criticised a court decision handed down in connection with criminal proceedings relative to the killing of trade unionists. Lacking specific information on the content of the letter in question, the Committee is unable to address the matter fully. However, in the Committee's opinion, trade union organisations are perfectly within their rights in expressing themselves on matters of this nature. Nevertheless, the Committee recalls that in expressing their opinions, trade unions must respect the limits of propriety and refrain from using insulting language. The Committee requests the Government to transmit the text of the letter sent by the Confederation to the Supreme Court and to keep it informed on developments in the proceedings against the two leaders of the Confederation of Building Workers.
9. 335. Lastly, the Committee requests the Government to supply its observations on the latest allegations in this case,namely, the dismissal of workers and trade union leaders in the docks sector; the arrest of Juan Bustos Araneva, an official of the Democratic Central Organisation of Workers; the intervention of law enforcement agents to prevent the holding of a national trade union conference; the transfer to a state body of the assets of organisations declared to be illegal, the numerous arrests and searches of trade union premises at the time of the 1 May celebrations.