Rapport intérimaire - Rapport No. 331, Juin 2003

1. 181. The complaints are contained in a communication from the Chilean General Confederation of Workers (CGT) dated August 2002 and in a communication from the National Union of Metal, Communication and Energy Workers and Related Activities, dated 5 September 2002.
2. 182. The Government sent its observations in a communication dated 30 January 2003.
3. 183. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 184. In its communication of August 2002, the Chilean General Confederation of Workers (CGT) alleges that acts of anti-union discrimination and physical aggression have been carried out against union officers and members from various companies. Specifically, the CGT makes the following allegations:
   • (i) Sopraval S.A. The complainant alleges that, beginning in 1999, the company carried out the following acts against the union and its members: (1) in May 1999 it offered maintenance workers a pay rise if they resigned from the union, which led to the resignation of all members in that sector; (2) in July 1999 it dismissed Mr. José Figueroa for standing as a union officer; (3) in August 1999 six workers were dismissed from the rendering section for joining the union; (4) in August 1999 the company obstructed the awarding of union permits, it has not deducted 0.75 per cent from the salary of workers benefiting from the collective contract, and it has announced that it will not make deductions from union loans to workers, thus causing financial damage to the union; (5) on 14 September 1999 the company dismissed 23 workers who were union members, on the grounds of company necessity; (6) in October 1999 it put pressure on workers – union members and non-members – to accept a collective agreement with a 50 per cent pay cut and also offered loans to workers who would resign from the union; (7) in November 1999 it dismissed 60 union members who had participated in a protest in the Senate against the law on severance pay related to years of service; (8) in January 2000, 11 union members were shut in and forced to sign union resignations; (9) in March 2000 the process of collective negotiation began and the company offered the same conditions of employment to both union members and non-members and in consequence, on 1 and 2 May 2000, the union declared a legal strike and the company used the police to intimidate strikers and to help strike-breakers cross picket lines. On this occasion the police wounded and detained workers assembled outside the company’s buildings; (10) the president of the union, Mr. Orellana Ramírez, was threatened with death during the strike; (11) after the strike the company began a judicial process against Mr. Orellana Ramírez in order to lift his trade union immunity and dismiss him and as of May 2000 ceased to pay his salary, also withholding the documents necessary for payment of sick leave; and (12) in December 2000 in an attempt to dismiss the president of the union, the company encouraged a meeting to be held to vote for censure of the leadership. At the meeting, held on 11 December 2000, such censure was put to the vote and passed in an irregular manner, given that a judicial action in this respect had already begun. Lastly, the complainant alleges that, although there was already an executive committee in place, elections for a new executive were held in an irregular manner (in the presence of a municipal secretary, who does not have the authority to oversee a union election).
   • (ii) Cecinas San Jorge S.A. The CGT alleges that, after the creation of the Cecinas San Jorge Inter-company Union on 10 October 2001, the management: (1) promoted the formation of another union and, having gathered its workers together on its premises, made them join this second union under threat of dismissal; (2) on 22 October 2001 it dismissed the president of the union, Mr. Alvaro Zamorano, and prohibited him from entering company premises; (3) on 25 October 2001 it dismissed nine union members during negotiation of a collective contract; and (4) on 30 October 2001, after the Cecinas San Jorge Company Union had been formed and Mr. Zamorano elected president thereof, the company began slander proceedings against him for having stated that the company had offered money to workers to resign from the company’s union.
   • (iii) Bakery companies. (1) On 1 July 2001, the company of Mr. Manuel Jesús Carreño Díaz dismissed without cause Mr. Raúl Vargas Verdejo, president of the Federation of Bread Workers and president of the Inter-company Union of the Bread Industry and Similar Sectors; and (2) the company of Mr. Manuel Regueiro dismissed, without having previously obtained judicial authorization, Mr. Juan Aros Donoso, officer of the Federation of Bread Workers of the 5th Region and president of the Viña del Mar Inter-company Union of the Bread Industry.
2. 185. In its communication dated 5 September 2002, the National Union of Metal, Communication and Energy Workers and Related Activities alleges anti-union dismissals of workers enjoying union protection (special protection for workers involved in the process of collective negotiation) at Electroerosión Japax Chile S.A. The complainant specifically alleges that, after asking the company (on 2 July 2002) for information, with a view to submitting their collective bargaining demands, three workers enjoying trade union immunity were dismissed on 3 and 4 July. Subsequently, on 8 July, a folder of petitions was presented and the company dismissed eight more workers, also under trade union immunity. The complainant adds that the labour inspectorate was informed of these anti-union dismissals, that the inspectorate established the facts on 10 and 12 July 2002 and that, on both occasions, the company refused to reinstate the workers. Lastly, the complainant notes that in August 2002 it took its case to the judicial authority, which took more than a month to set a date for the parties to meet (4 October 2002).

B. The Government’s reply

1. 186. In its communication dated 30 January 2003, the Government states, with reference to the complaint relating to the union founded at Cecinas San Jorge S.A., that according to the registers there are four unions at the company in question: the Cecinas San Jorge S.A. Company Union, the National Union of Vendors and other workers of Cecinas San Jorge S.A., the “Cecinas San Jorge S.A.” Company Workers’ Union, and the “Cecinas San Jorge S.A. and Other Workers” Inter-company Workers’ Union. Mr. Alvaro Zamorano Miranda was a founding member of both the “Cecinas San Jorge S.A.” Company Workers’ Union, an organization established on 27 October 2001, and the “Cecinas San Jorge S.A. and Other Workers” Inter-company Workers’ Union, established 10 October 2001, and was elected president of both organizations. In this respect, and according to the same registers, he resigned from the post of president of the organizations on 12 December 2001 and 26 October 2001 respectively.
2. 187. The Government states, in accordance with information received from the labour inspectorate, that, at the point when the Inter-company Union was established, there were indeed problems with the company participating in promoting a parallel union; in this context, the company terminated the contract of employment of Mr. Zamorano, the president of the union, on 22 October 2001, a dismissal which he then challenged, giving rise to a fine of ten months’ salary being imposed for not providing the work agreed in the contract of employment, as laid down in resolution No. 13.11.3227.01.006-1 dated 25 October 2001.
3. 188. The Government reports that, on 5 December 2001, a visit was carried out to the company, requiring the reinstatement of Mr. Zamorano, which the company declined to accept. Subsequently, a commission was established to investigate the complaints of anti-union practices, specifically the company’s involvement in setting up a parallel union. The investigation enabled the conclusion to be drawn that there had indeed been some intervention on the part of the company in calling its workers together for a meeting on its premises to pressure them into joining this union. The meeting, according to the investigation, was organized and chaired by the company’s legal representative. Later, the union biased towards the company quickly signed a collective contract, to the detriment of the other organizations. The reports drawn up by the Communal Labour Inspectorate of Santiago Poniente are being examined so that the case can be taken before the ordinary justice tribunals, in accordance with the applicable legal provisions.
4. 189. With regard to the allegations relating to the bakery companies of the 5th Region, the Government states that the Regional Labour Directorate of the 5th Region has reported on the situation of the officers in question: (a) Mr. Manuel Jesús Carreño Díaz, president of the Quintero Inter-company Union of the Bread Industry and Similar Sectors and director of the Federation of Workers of the Bread Industry and others brought a complaint of illegal separation of functions before the labour inspectorate on 3 July 2001; after several inspection visits resulting in an equal number of sanctions against the employer, Mr. Raúl Vargas, he reinstated the officer in question on 25 July 2001 with payment of the salary owing; and (b) with regard to Mr. Juan Aros Donoso, president of the Viña del Mar Inter-company Union of the Bread Industry, the labour inspectorate reported that no complaint had been brought against the employer, Mr. Manuel Regueiro, for the alleged dismissal.
5. 190. Regarding the allegations relating to Electroerosión Japax Chile S.A., the Government reports that, in accordance with Labour Directorate precedent, the company’s workers brought a complaint before the Santiago Provincial Labour Inspectorate about the dismissal of nine workers enjoying trade union immunity, as a result of the process of collective negotiation that took place.
6. 191. The Government states that the fines appropriate to the illegal dismissal of workers (two fines of 20 months’ salary each) have been sanctioned and applied. With regard to anti-union practices, the Government adds that on 16 September 2002 the labour inspectorate, following the inspection and analysis process in strict accordance with the instructions in force, presented before the 6th Labour Court of Santiago a complaint of illegal separation of nine workers due to the collective negotiation in which they were involved (inter-company negotiations subject to the regulations contained in section 334bis of the Labour Code). The union leadership later informed the labour inspectorate that on 7 August 2002 it had complained of the same anti-union practice to the 8th Labour Court of Santiago; on 4 February 2002 the labour inspectorate became involved in the case.
7. 192. The Government reports that, on 25 October 2002, the 8th Labour Court gave its ruling, rejecting the complaint of anti-union practices, with clear legal errors, having agreed the (legally arguable) alternative that the complainants appeal the decision. In the case heard by the 6th Court, the company claimed litispendence (the case was being heard by another court at the same time), leaving a previous resolution ordering the reinstatement of the workers unimplemented. The company was notified of this on 8 November 2002 but declined to act. Lastly, the Government notes that the ruling of the 8th Labour Court is still pending (it has not been implemented), meaning that the same is true of the resolution which applies in the case of the alleged litispendence in the 6th Labour Court. According to the Government, the Labour Directorate has carried out its task rigorously with the aim of reversing the conclusions of the 8th Labour Court in the aforementioned ruling.
8. 193. With regard to the allegations relating to Sopraval S.A., the Government states that, regarding the alleged hostile behaviour and threats to freedom of association, the labour inspector responsible for the case interviewed Mr. Cristián Feliú Briones, secretary of the “Sergio Pincheira” Sopraval S.A. Company Union, and Mr. Leonardo Saldaño Orrego, president of the same union since 5 January 2001, who declared they had no proof of the events having taken place. The labour services have been made aware that the La Calera Court of Letters is examining a case of anti-union practices (Case No. 10.972-2000).
9. 194. With regard to the process of collective negotiation which took place in May 2000, the Government states that the legal strike agreed in the process of collective negotiation between Sopraval S.A. and the “Sergio Pincheira” Workers’ Union began on 2 May 2000 and involved 113 workers at the manufacturing plant, where 409 out of a total of 889 workers are employed. On the same day (2 May 2000) an inspection visit was made to the company by an official from the Quillota Regional Labour Inspectorate in order to confirm the start of the strike, which was then described in the resulting inspection report. Likewise, the Inspectorate analysed the content and chances of the company’s latest offer and concluded that it was not legally proper to contract replacement workers, since the necessary minimum conditions for this to happen were not present. For this reason, any form or mechanism of replacement would constitute an infringement of section 381 of the Labour Code.
10. 195. The Government adds that between 4 and 12 May five inspection visits were made to the company, some at the request of the negotiating committee and others arranged by the authorities of the labour services, in order to prevent possible infringements of section 381, in that the effective replacement of striking workers could have occurred despite the company not being legally authorized to do this. It was not possible during these visits to prove that Sopraval S.A. had contracted personnel to replace the striking workers and, as such, neither was it possible to establish a potential infringement of section 381 of the Labour Code. On 1 June 2000, 15 legally striking workers returned to their jobs, in accordance with the same section 381 of the Labour Code.
11. 196. With regard to the actions of the Chilean police during the process of collective negotiation and the legal strike, the Government states that it must be borne in mind that since 1992 the Labour Directorate has maintained permanent coordination with the police force in order to prevent the occurrence of events such as those alleged by workers of the Sopraval company. As of 1996 all regional labour directorates have received instructions, in Service Order No. 7, to establish a system of permanent coordination with the various police units in order to ensure that the development of the strike process, as well as any other type of labour conflict, is properly supervised by both institutions. This being the case, after the complaint about the actions of the police on 2 May 2000, the first day of the strike, had been received, a meeting held in the Quillota Labour Inspectorate was attended by the Governor of the Province, who promised to request a report and ensure different conduct on the part of the forces of law and order. All this aims to allow workers to exercise their rights freely and not be harassed or prevented from expressing their opinions by any institution of the State.
12. 197. Lastly, the Government states that, on 11 December 2000, before the Public Notary, Mr. Moisés Corvalán Vera, the vote to censure the leadership of the “Sergio Pincheira” Sopraval S.A. Company Union took place with 57 members voting, 53 in favour of censure and 4 against. On 5 January 2001, before the acting lawyer-secretary of the 1st Municipality of La Calera, Mr. Jorge Héctor Torres Jaña, a new leadership of the “Sergio Pincheira” Sopraval S.A. Company Union was elected, consisting of Mr. Heiter Leonardo Saldaño Orrego (president), Mr. Juan Olmos Fuenzalida (secretary) and Mr. Pedro Tapia Céspedes (treasurer).

C. The Committee’s conclusions

1. 198. The Committee observes that, in the present case, the complainants allege that various acts of anti-union discrimination have taken place at Sopraval S.A., Cecinas San Jorge, Electroerosión Japax Chile S.A. and two bakery companies.
   • Sopraval S.A.
2. 199. With regard to the allegation relating to the use of strike-breakers during the legal strike which took place at the company from 2 May 2000, the Committee takes note of the Government’s statement that the administrative authority undertook five inspection visits in this respect and was unable to establish that the company had contracted personnel to replace the striking workers.
3. 200. With regard to the allegations of acts of intimidation and violence by the police during a gathering of striking workers outside the company’s buildings (resulting in workers being injured and detained), the Committee takes note of the Government’s statements that: (1) since 1992 the Labour Directorate has maintained permanent coordination with the police force in order to prevent the occurrence of events such as those figuring in the complaint; (2) as of 1996 all regional labour directorates have received instructions in a service order to establish a system of permanent coordination with the various police units in order to ensure that the development of the strike process is properly supervised by both institutions; (3) after the complaint about the actions of the police on 2 May 2000 during the strike had been received, the Governor of the Province promised to request a report and ensure different conduct on the part of the forces of law and order; and (4) the measures adopted by the Government are aimed at allowing workers to exercise their rights freely and not be harassed or prevented from expressing their opinions by any institution of the State. In this respect, the Committee recalls that “in cases in which the dispersal of public meetings or demonstrations by the police for reasons of public order or other similar reasons has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities” and that “the arrest and detention of trade unionists without any charges being laid or court warrants being issued constitutes a serious violation of trade union rights” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 148 and 79]. In this regard, the Committee requests the Government to send the report which the Governor of the Province promised to request and to ensure that investigations begin into the allegations and, if appropriate, that the sanctions provided for in legislation are applied.
4. 201. With regard to the allegations relating to company interference in holding a meeting to vote for censure of the union leadership, the Committee takes note of the Government’s statement that the censure vote took place on 11 December 2000 before a public notary and that 57 members voted, 53 in favour of censure and 4 against. The Committee observes that the complainant reports that a judicial action in this regard has begun. In these circumstances, the Committee requests the Government and the complainant organization to keep it informed of the final decision of the judicial authority.
5. 202. With regard to the allegation relating to irregularities which occurred in the election of a new union leadership, the Committee takes note of the Government’s statement that on 5 January 2001 a new union leadership was elected before the acting secretary of the Municipality of La Calera. In this regard, the Committee recalls that on numerous occasions it has stated that “when internal disputes arise in a trade union organization they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities” [see Digest, op. cit., para. 971].
6. 203. Finally, the Committee regrets that the Government has not sent its observations on the rest of the allegations of acts which might have been committed on the part of Sopraval and which follow: (1) in May 1999 it offered maintenance workers a pay rise if they resigned from the union, which led to the resignation of all members in that sector; (2) in July 1999 it dismissed Mr. José Figueroa for standing as a union officer; (3) in August 1999 six workers were dismissed from the rendering section for joining the union; (4) in August 1999 the company obstructed the awarding of union permits, it has not deducted 0.75 per cent from the salary of workers benefiting from the collective contract, and it has announced that it will not make deductions from union loans to workers, thus causing financial damage to the union; (5) on 14 September 1999 the company dismissed 23 workers who were union members on the grounds of the needs of the company; (6) in October 1999 it put pressure on workers – some union members, some not – to accept a collective agreement with a 50 per cent pay cut and also offered loans to workers who would resign from the union; (7) in November 1999 it dismissed 60 union members who had participated in a protest in the Senate against the law on severance pay related to years of service; (8) in January 2000, 11 union members were shut in and forced to sign union resignations; (9) the president of the union, Mr. Orellana Ramírez, was threatened with death during the strike which began on 1 May; (10) after the strike the company began a judicial process against Mr. Orellana Ramírez in order to lift his trade union immunity and dismiss him and as of May 2000 ceased to pay his salary, also withholding the documents necessary for payment of sick leave. In these circumstances the Committee requests the Government to send its observations in this respect and inform it as to whether the judicial proceedings for anti-union practices mentioned generally in its reply refer to any of the pending allegations.
   • Cecinas San Jorge S.A.
7. 204. With regard to the company’s alleged promotion of a union, the Committee takes note of the Government’s statement that an investigation was carried out which determined that the company had indeed organized and chaired a meeting of workers to pressure them into forming a union, and that the reports drawn up by the Communal Labour Inspectorate of Santiago are being examined so that the case can be taken before the ordinary justice tribunals, in accordance with the applicable legal provisions. In this regard, the Committee recalls that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations with respect to employers and that promoting the establishment of a workers’ organization on the part of an employer constitutes a serious violation of the Convention. In these circumstances, the Committee requests the Government to take measures to ensure that such acts are not repeated in the future, as well as to inform it of the outcome of any judicial action which the administrative labour authority brings before the judicial authority.
8. 205. The Committee also observes that the Government reports that the union which was formed with a bias towards the company quickly signed a collective contract to the detriment of the other union organizations. In this regard, the Committee recalls that, taking into account the importance of the independence of the parties in collective bargaining, negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by or under the domination of employers or their organizations [see Digest, op. cit., paras. 771 and 789]. This being the case, the Committee requests the Government to take measures ensuring that collective negotiation at Cecinas San Jorge takes place with the workers’ organizations which have been freely formed by the workers, as well as examining the legality of the collective agreement with the union which the Government describes as “biased” towards the company.
9. 206. With regard to the allegation relating to the dismissal of Mr. Alvaro Zamorano, president of the Cecinas San Jorge Inter-company Union and the Cecinas San Jorge Company Union, the Committee observes that the Government reports that: (1) in the context of the company’s participation in the formation of a new union Mr. Alvaro Zamorano’s contract of employment was terminated on 22 October 2001; and (2) the administrative authority imposed a fine of ten months’ minimum salary on the company for not providing the work agreed in the contract of employment and on 5 December 2001 requested the company to reinstate the union officer in question, without success. In this regard, the Committee recalls 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 or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724].
   • This being the case, the Committee requests the Government to make renewed efforts with the company to secure the reinstatement of the dismissed union leader and to take measures to avoid the repetition of such acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.
10. 207. Lastly, the Committee regrets to observe that the Government has not sent its observations on the other allegations, according to which the company dismissed nine union members during negotiation of a collective contract on 25 October 2001 and on 30 October 2001 initiated slander proceedings against union officer Mr. Alvaro Zamorano for having stated that the company had offered money to workers to resign from the union. The Committee requests the Government to communicate its observations in this respect.
    • Bakery companies
11. 208. With regard to the alleged dismissal without cause of Mr. Raúl Vargas Verdejo, president of the Federation of Bread Workers and president of the Inter-company Union of the Bread Industry on 1 July 2001 from the company of Mr. Manuel Jesús Carreño Díaz, the Committee takes note of the Government’s statement that the administrative authority imposed various sanctions on the employer and that finally the officer in question was reinstated, with the payment of salary owing.
12. 209. With regard to the dismissal, without having previously obtained judicial authorization, of Mr. Juan Aros Donoso, officer of the Federation of Bread Workers of the 5th Region and president of the Viña del Mar Inter-company Union of the Bread Industry, from the company of Mr. Manuel Regueiro, the Committee takes note of the Government’s statement that there has been no complaint in this respect. This being the case, the Committee requests the Government to take measures to investigate whether the dismissal in question took place and, if so, to inform it of the specific facts behind it. The Committee requests the Government to keep it informed in this respect.
    • Electroerosión Japax Chile S.A.
13. 210. With regard to the alleged dismissal of nine workers enjoying trade union immunity between 3 and 8 July 2002, during the start of the process of negotiating a folder of petitions, the Committee takes note of the Government’s statements that: (1) the administrative authority imposed two fines of 20 months’ salary each on the company for the dismissals in question and brought a complaint before the judicial authority for illegal separation of workers enjoying trade union immunity stemming from collective negotiation (the complainant also brought a complaint before another court in this respect); (2) the complaint presented by the complainant was rejected, with a verdict which showed clear legal errors; (3) as regards the complaint presented by the administrative authority, the company claimed litispendence and therefore a reinstatement resolution which had been given was left unimplemented; and (4) the judicial authority now has to decide in the matter of the claim of litispendence made. In this regard, the Committee recalls that “the right of petition is a legitimate activity of trade union organizations and persons who sign such trade union petitions should not be reprimanded or punished for this type of activity” [see Digest, op. cit., para. 719]. The Committee requests the Government to send it a copy of the final judicial ruling on these dismissals.