Rapport intérimaire - Rapport No. 335, Novembre 2004

1. 567. The complaints are contained in communications from the National Inter-enterprise Union of Metallurgy, Communications, Energy and Allied Workers (SME), dated 30 November 2003 and 14 January and 23 February 2004, and in a communication from the World Federation of Trade Unions (Regional Office, Americas) dated 29 March 2004. The SME sent additional information and new allegations in communications dated 10 May, 2 June and 4 September. The Government sent its observations in communications dated 20 May and 30 June 2004. The PLASTYVERG consortium sent its observations in a communication dated 30 April 2004.
2. 568. 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. 569. In its communication dated 30 November 2003, the National Inter-enterprise Union of Metallurgy, Communications, Energy and Allied Workers (SME) alleges anti-union practices in the PLASTYVERG conglomerate, dismissal by one of the enterprises of the group (the Promociones Packs y Ofertas S.A. enterprise) of trade union delegates José Saavedra Araya (23 September 2003) and Luis Labarca Lazo (27 September 2003) and trade union member Pablo Villavicencio; Luis Martínez, a trade union delegate in the Center Packs enterprise, was also dismissed, although he was subsequently reinstated (being covered by trade union immunity) but transferred to another workplace; this enterprise then asked trade union delegate Luis Martínez Duarte to withdraw from the trade union and to set up a separate group of workers; Mr. Martínez Duarte refused and the Promociones Packs y Ofertas S.A. enterprise then appointed a staff delegate in the enterprise, and got a group of workers to sign this nomination after offering them economic advantages; at the same time, the enterprise began to pressure the trade union members to withdraw from membership and join the abovementioned group of workers.
2. 570. In October 2003, the SME, as the inter-enterprise trade union, submitted draft collective agreements to the different enterprises in the PLASTYVERG group, which refused to accept them and continued to pressure workers to withdraw from the trade union and from the bargaining process. Later the draft agreements were presented as coming from groups of workers (as prescribed by law). The Promociones Packs y Ofertas S.A. enterprise accepted the list of demands from the staff delegate (who was appointed by the enterprise, as mentioned above). In view of the above, the SME filed complaints with the labour inspectorate; pressure to withdraw from membership and from collective bargaining continued; trade union delegate Rafael San Martín Artete was assigned different duties, and sent to package rolls and threatened with a pay cut. On 26 November 2004, the general manager of the PLASTYVERG group informed trade union delegate Sergio Cornejo Durán that the workers would have to withdraw from the trade union once the collective bargaining process was completed.
3. 571. In its communications dated 29 March and 10 May 2004, respectively, the World Federation of Trade Unions (Regional Office, Americas) and the SME allege that SME members Antonio Cordero and Juan Muñoz were dismissed for refusing to consent to the PLASTYVERG enterprise’s demand to resign “voluntarily” “on grounds of the requirements of the enterprise”. In addition, as a result of pressure and constant harassment by the enterprise, union members Nelson Araneda, Víctor Viera, José Vera, Fernando Martínez, José Poblete, Ramón Lizama and Héctor González gave in and, after being dismissed, consented to sign so-called “voluntary resignations”; the enterprise then hired fewer workers. The enterprise had already notified the workers that anyone who participated in collective bargaining would be dismissed once their period of statutory immunity expired.
4. 572. Starting on Monday, 15 March, of this year, after receiving from the employers’ association (SOFOFA) a copy of the complaints submitted by the trade union to the ILO, the enterprise obliged workers to sign a blank document in letter format. All of the workers were threatened with dismissal if they did not support the enterprise with their signature. The threat went, “if you want to continue working, sign” and was issued by line managers or supervisors. A worker who refused would be dismissed “on grounds of the requirements of the enterprise” according to section 161 of the Labour Code, as happened to worker Vladimir Castillo.
5. 573. Demanding their signature, representatives of the enterprise presented each worker, one by one, at the workplace, with a letter from the enterprise and the employers’ organization SOFOFA to the International Labour Organization. The letter referred to the complaint of 30 November 2003 submitted to the ILO by the trade union against the State of Chile for violation of international labour Conventions Nos. 87 and 98. Up to Thursday, 19 March, faced with this situation and the total lack of protection against anti-union dismissal, the trade union had advised workers to sign if they were pressured to do so, since this confirmed the existence of anti-union practices. Using this method, by 19 March 2004, 198 signatures of workers in different areas had been collected for purposes of which the complainant organization is not aware, but they are believed to be intended to counter the arguments put forward in the complaint.
6. 574. In the same circumstances, since Wednesday, 17 March 2004, the enterprise and the staff delegates appointed by it have ordered workers to sign a letter that has already been drafted, in which the signatories express their alleged opposition to the trade union, demanding that the trade union delegates be censured. There are three staff delegates appointed by the enterprise who have participated in the collection of signatures to censure trade union delegates (this is the term used in Chilean legislation to refer to workers’ representatives); none of them is a trade union member, and they participate in all of the anti-union actions undertaken by the enterprise.
7. 575. According to the complainant organization, all of these processes were set in motion by the fact that on 15 March a copy of the formal complaint of 30 November 2003 presented to the ILO fell into the hands of PLASTYVERG’s management, unleashing a wave of actions against freedom of association by the enterprise, to the grave detriment of the workers. The trade union is now awaiting the outcome of an initial complaint filed with the courts covering the first six months of anti-union practices by this enterprise.
8. 576. The following trade union members employed by the enterprises of the PLASTYVERG group have had to stop working for the company: Fernando Martínez (Center Packs), Víctor Viera (Promo Packs), José Poblete (Center Packs), Ramón Lizama (Promo Packs), Nelson Araneda (PLASTYVERG), Vladimir Castillo (Promo Packs), José Vera Vera (Promo Packs), Antonio Cordero Espinoza (Center Packs) Héctor González (Promo Packs), Juan Carlos Muñoz (Promo Packs). Some agreed to sign so-called voluntary resignations – which are not in fact voluntary – in return for which they received a pay rise after having been constantly harassed and dismissed with the aim of disguising the anti-union practice. Two of these workers refused to resign and were dismissed on grounds of the requirements of the enterprise ? their posts were taken by other workers.
9. 577. In its communication of 2 June 2004, the SME alleges that the following trade union members were dismissed on 31 May 2004 on grounds of “the requirements of the enterprise” (section 161 of the Labour Code): Mario Sandoval, Guillermo Pérez, Jorge Cerda and Alex Delgado. The enterprise has already hired other workers in the positions of those who were dismissed. The trade union requested the labour directorate to take note of these practices in violation of freedom of association, which have become even worse in the PLASTYVERG enterprise.
10. 578. Lastly, in its communications of 14 January and 23 February 2004, the SME sends allegations concerning violations of trade union rights by the HERPA S.A., Viñas Tarapacá y Santa Helena enterprise and the CODELCO state enterprise.
11. 579. The SME alleges that on 27 May 2003, the workers employed by the Spanish multinational HERPA S.A. Chile elected Mr. Néstor Carrasco as their trade union delegate. The enterprise refused to recognize the SME and the trade union delegate, who was dismissed, and later had to be reinstated by court order. At the trade union’s request, the Labour Directorate carried out an inspection on 11 September 2003, as a result of which it fined the enterprise for failure to pay remuneration, non-compliance with security regulations and unlawful dismissal of a trade union delegate covered by trade union immunity. On 22 October 2003, a vote was held to elect a bargaining committee to begin negotiations, and the following workers were elected: Néstor Carrasco, Marcos Rojas and Andrés Sánchez. The next day, the enterprise unlawfully dismissed Alberto Carrasco, Marcos Rojas and Jaime Vera, all members of the SME, in order to prevent the workers from achieving the quorum required to initiate bargaining. On 11 December 2003, a request was made for an inspection of the enterprise on grounds of anti-union practices: failure to assign the work agreed in the contract; transfer of the trade union delegate to other duties; hiring workers to illegally replace unionized workers; separation of reinstated workers from the rest of the workers at lunchtime to prevent them from communicating among themselves; and threats of dismissal against unionized workers.
12. 580. The enterprise continued to harass Néstor Carrasco in order to get him to resign from the union and the enterprise. Finally, he submitted a “voluntary” resignation to the San Bernardo Labour Inspectorate on 18 December 2003. On 21 January 2004 the enterprise accepted some of the points raised in collective bargaining but rejected all the rest. On the next day, the Labour Directorate was notified of the termination of negotiations, in particular because the employer refused to agree to any wage increase. On 23 January a legal strike began, during which the workers held a sit-in in the enterprise. The courts turned down the enterprise’s request to evict the workers and confirmed that the workers were within their rights. The enterprise lodged an appeal for protection of constitutional rights (amparo) with the Court of Appeals, which is still pending. Since the beginning of the strike, the enterprise refused to meet with trade union leaders. On 26 January, inspectors attempted to evict the workers, alleging that the strike was illegal. On 2 February, the enterprise hired 12 strike-breakers from a security company. A complaint was filed against this situation with the labour inspectorate, which took note of the violation and ordered that these workers be removed from the enterprise.
13. 581. On 17 February the workers again held a peaceful sit-in at the enterprise at 6.30 a.m. At 8.30 a.m., a police unit arrived on the scene, but the workers refused to be evicted from the enterprise in the absence of a court order. Later, police reinforcements arrived in large numbers and evicted the workers by force, using considerable and disproportionate violence against the five workers who were in the enterprise. As a result, three workers were seriously injured, and all of them were detained, together with three workers who were offering their support. The police used more than 60 officers, a vehicle equipped with a water cannon, a vehicle equipped with a tear gas launcher and three police cars, two motorcycles and the application of tear gas. Up to the date of the complaint, police officers remained stationed in the enterprise, in a move to intimidate the workers on strike.
14. 582. The complainant organization alleges that these acts occur because of connivance between major export enterprises and the multinationals that provide production services to them, in the absence of appropriate measures by the State to put an end to such practices. The authorities confine themselves to imposing minor fines on enterprises found guilty of violations, but do not put an end to the violation. The SME alleges further that the Viñas Tarapacá and Santa Helena enterprises are also guilty of having allowed strike-breakers to come and work in their installations to replace the striking workers employed by HERPA S.A.
15. 583. The SME points out further that the CODELCO state enterprise, Mina El Teniente division, in Rancagua, region VI, hires subcontractors to work their copper mines, and the latter hire further subcontractors in turn. The CODELCO enterprise thus does not have contractual relationships with all of the miners working in the areas owned by it. The SME alleges that in November 2002 these enterprises refused to engage in collective bargaining. The Provincial Labour Inspectorate changed its original stance and now supports the subcontractors, citing orders issued by the Labour Directorate itself, which have not been approved by Parliament and which entail in practice an amendment of legislation, since they deny the right to bargain collectively to thousands of unionized workers.
16. 584. Various attempts by the Inter-enterprise Trade Union of Workers of the CODELCO Enterprises (SITELCO) to set up a joint body to seek possible solutions with representatives of the enterprise were rejected on the grounds that the enterprise does not have contractual relationships with the workers. CODELCO refuses to recognize the trade union and has even filed a lawsuit against it, considering it an illegal association.
17. 585. Shortly after the draft collective agreement was presented to the CODELCO subcontractors, Mina El Teniente division, three of the union’s leaders were beaten in the public thoroughfare “so that they would stop causing problems”. At the beginning of December 2003, the CODELCO enterprise prevented union leaders from going to the worksites where its members were working. On 15 December, workers employed by the subcontractors started a sit-in strike to get the enterprises to negotiate with the trade union on the draft collective agreement. Apparently as a result of CODELCO’s intervention, the enterprises rejected the proposal and said that they would only negotiate with staff delegates, excluding the trade union.
18. 586. During discussions at the worksite, the enterprises proposed a particular form of bargaining (enterprise by enterprise) with a trade union presence. Although this proposal was accepted by the trade union, the enterprises subsequently withdrew their proposal. On the afternoon of 15 December the workers peacefully occupied the main entrances to the mine. There were no cases of persons attacked or security endangered. In the morning of 16 December, the workers received an ultimatum from the enterprise ordering them to leave the mine. Without attempting to negotiate a solution, about two hours later the workers were attacked by police using truncheons, firearms and 12-gauge shotguns with rubber-coated steel bullets or shot.
19. 587. A total of 16 workers were injured, some of them seriously. The worker Enzo Pérez was hit by 20 shots. Police arrested 115 strikers (including the wounded) and released them on the afternoon of the same day. The police succeeded in breaking the strike and evicting the workers.
20. 588. As of the date on which the complaint was presented, 220 workers had been dismissed for participating in this action. CODELCO called for dismissal of the striking workers and their inclusion on blacklists so that they would not be able to return to its premises or work for its subcontractors.
21. 589. The SME alleges that there was no court order to evict the strikers and that the police acted illegally on behalf of the CODELCO state enterprise, as it had on many other occasions.
22. 590. The SME emphasizes that the contract workers’ real employer is CODELCO, which is jointly responsible for the obligations of its subcontractors towards its workers, including with regard to trade union rights. It adds that, as CODELCO is a state enterprise, the State also bears responsibility for the anti-union measures.
23. 591. In its communication dated 4 September 2003, which was also signed by the National Confederation of Construction Workers (CNTC), the National Confederation of Healthcare Workers (CONFENATS), the National Association of Workers of the Youth Protection Service (ANTRASE), the Metropolitan College of Teachers (CRP), the National Confederation of Road Transport Workers (CONUTT), the National Inter-enterprise Trade Union of Commercial, Textile, Garment and Allied Workers (SCTV) and the National Inter-enterprise Trade Union of Security Guards, Watchmen and General Services and Allied Workers, the SME alleges that the Single Central Organization of Chilean Workers (CUT), during the May Day celebrations in 2003, called on Chilean workers to hold a nationwide 24-hour strike on 13 August 2003. The workers observed the strike and participated actively; in all of the cities throughout the country there were demonstrations, stoppages and blockages caused by marches and demonstrations of workers, of which the authorities had been duly informed in advance. In order to avoid serious harm to the public, the different trade unions and professional associations maintained emergency services, for example in public health services; even teachers ensured that poor pupils were served meals in schools. The trade union leadership and members had carried out their preparations with a great deal of responsibility and forethought. The Chilean workers had presented their list of demands, entitled “For a fair Chile”, explaining the reasons and demands behind the national strike, at a meeting held in September 2002 with the President of the Republic and his ministers. The reasons and demands are as follows:
    • – against growing and unfair social inequalities;
    • – against the application of an economic model that generates unemployment and makes work more precarious;
    • – the authorities should enforce labour law, because over one-half of the enterprises systematically violate it;
    • – put a stop to blatant anti-union persecution and guarantee workers the right to form trade unions freely and without threats;
    • – ensure that workers can engage in genuine collective bargaining, because this right does not exist in practice;
    • – reject the changes in maternity leave for working women;
    • – decent jobs, with decent wages and social security;
    • – genuine and real social protection for all workers, whether dependent or self-employed;
    • – in protest against the anti-worker policies of the Government of Chile;
    • – for a reform of the labour court system, given that labour court proceedings lasted years.
24. 592. Previously, at a public meeting in August 2002, the leadership of the CUT had presented their proposals and demands to the highest authorities, and the President of the Republic had assigned the Minister of Labour the task of examining the organization’s proposals in September 2002. The day before the strike, on 12 August, the President of the Republic criticized the call for a strike, saying he was unaware of the reasons for the action taken by the trade union confederation, thus displaying the Government’s lack of interest and callousness.
25. 593. On the eve of the strike, the Government started discrediting this action by the workers, denying its legitimacy. At the same time, the police began their first acts of repression against the trade unionists. For example, on Friday, 8 August, the CUT’s National Adviser, Sergio Troncoso, and the national leader of the Trade Union of Contingent Workers and Unemployed Persons, Pedro Muñoz, were detained by police officers for distributing information leaflets on the national strike. They were released after spending three hours in the police station. All of the propaganda materials were confiscated.
26. 594. In the run-up to the strike, the Ministers of Health and Education issued threats to public sector workers intending to participate in this trade union action. For example, on 23 July, the Secretary of Health wrote the following letter to his staff: “I inform you that this state secretariat does not approve of the total or partial interruption or stoppage of activities ... Accordingly, I instruct you ... to have recourse ... to the use of the police forces”. Similarly, the Secretary of Education, Sergio Bitar, and other senior government officials threatened public employees who participated in the national strike with detrimental consequences, such as disciplinary proceedings and pay deductions.
27. 595. The obvious aim of these intimidation tactics by government authorities was to frighten the workers into not exercising their rights. Similar threats and intimidation were also carried out by the Minister of Transport, who even threatened the workers with a fine and demanded that bus owners dismiss bus transport workers who participated in the strike. The first wave of police violence occurred early on in the strike, forcing the workers to go to work. The government authorities warned employers to hire strike-breakers to break the national strike; metro employees were forced to work 12-hour days.
28. 596. As had already happened in previous public demonstrations, three masked youths, who were not involved in the workers’ marches, appeared punctually on the morning of 13 August, obstructing the public thoroughfare in the vicinity of the column of marching workers. The police did not detain the masked youths, but they did attack and detain leaders and workers who were peacefully marching. On the following day, official statistics mentioned “four instances of serious disturbances of public order and damage to public property”. These isolated occurrences, which were unrelated to the six blockages formed in different parts of the city to peacefully urge workers not to work and to participate in the national strike, served as a motive and a pretext to launch an army of thousands of police officers deployed in the capital.
29. 597. The police officers were fully equipped to repress a rebellious crowd: combat gear, armoured trucks, a large number of water cannons and huge quantities of a powerful new type of tear-gas bomb. This huge police arsenal was not used to detain the isolated vandals, but to attack groups of demonstrators who were attempting to approach CUT headquarters. Some of the groups could not leave because the police had closed off the streets that the demonstrators had been authorized to march through. The others suffered ill treatment to an unprecedented extent. All the weaponry that had been brought in to repress and intimidate the demonstrators was put to violent and brutal use. The marching columns were dispersed using water cannons and even small groups of demonstrators were pelted with tear-gas bombs, and the police indiscriminately detained participants. The police were seen literally hunting people down for no reason other than the aim of carrying out an attack of unprecedented violence to destroy any organized movement. None of the groups of demonstrators managed to reach CUT headquarters in an organized manner.
30. 598. Anyone who came near the CUT premises, whether dispersed members of the groups of demonstrators or individuals, was attacked with water cannons containing chemicals or with tear gas. During the attacks on workers in front of the CUT building, water cannons were aimed as high as the second floor of the building, where the president and secretary-general of the CUT had their offices. This was where the officers targeted most of their tear gas attacks. In addition, as the secretary-general of the CUT and the president of the SME, together with teachers, health workers, transport workers, commercial workers, copper miners and other leaders was addressing the workers outside the premises of the CUT, he was assaulted by police with water canons containing chemicals, for no reason at all.
31. 599. The way in which the members of the police forces had been prepared is further reflected in their behaviour throughout the rest of the day. All of the attempts to organize a trade union event had already come to a halt, the public thoroughfares were open and there were only a few hours left until the planned end of the strike. Some incidents occurred in a district south of Santiago. Outside the area where the incidents occurred, some police officers fired rubber bullets for no reason at a private house through the window and put an entire family at risk, inflicted a gunshot wound on one person, and fired tear gas at houses from 4 p.m. onwards. In another area of the capital, police armoured cars were brought out. These acts clearly demonstrate a deliberate intention to attack and provoke. This, and not the isolated incidents which occurred, was the most dangerous aspect of the entire day.
32. 600. There are no exact figures on the number of persons injured as a result of the criminal attacks perpetrated by the police forces. A number of workers who suffered physical injury have instituted proceedings against those responsible for truly criminal acts perpetrated against their physical integrity; the leaders lodged a complaint against the attack on the premises of the CUT, as well as an appeal for protection for a detained person who was tortured in a police station in southern Santiago.
33. 601. The Governor of the Metropolitan Region of Santiago himself threatened to dismiss workers in the metropolitan administration if they participated in the strike and, in a speech made early in the morning over the media, pointed out that such actions always resulted in fatalities. In the Youth Protection Service an order was issued to draw up lists of the participants in the national strike, and this was announced to employees so that they would refrain from taking part in the strike.
34. 602. The authorities stated that there was no reason for the strike because they had already met one of the CUT’s demands, which was to send draft legislation reforming the labour court system; this was announced publicly before the strike but was not true, as was made clear by the Chamber of Deputies, which stated that the draft had only been received in Parliament in October and was still pending in Congress.
35. 603. The public peaceful demonstration held by the trade unions did not give any justification whatsoever for the use of brute force by the police against demonstrators.
36. 604. After the events of 13 August, a complaint was filed under the Internal Security Act and because of a bus that had been burned, and this was widely publicized in the press, creating a climate of uncertainty, in an attempt to link these acts with the strike, whereas the CUT had called a national strike and its entire leadership had made every effort to organize the activities so as to avoid acts by agents provocateurs and members of the police who infiltrated the demonstration.
37. 605. A teachers’ leader, Marcela Mallea Bustos, who was evicted together with other teachers from the Liceo de San Pedro in the metropolitan region for having actively participated in the strike, was dismissed; her sister Patricia Mallea Bustos, also a teacher, was dismissed as well in reprisal.

B. The Government’s reply

1. 606. In its communication dated 15 June 2004, the Government states that the complaint made by the National Inter-enterprise Union of Metallurgy, Communications, Energy and Allied Workers (SME) refers to violations of trade union rights alleged to have occurred in the PLASTYVERG group of enterprises. This group is comprised of the following enterprises: Inmobiliaria La Vergara, Poli Packs, Promociones Packs y Ofertas S.A. and Center Packs.
2. 607. The allegations basically concern, on the one hand, pressure brought to bear by enterprises against trade union delegates of the abovementioned trade union and, on the other, refusal by enterprises to engage in collective bargaining, and during the process of bargaining, exerting pressure aimed at discouraging participation by the abovementioned trade union.
3. 608. In this respect, according to information in possession of the Labour Directorate, the trade union in question, in accordance with section 334bis of the Labour Code, presented draft collective agreements to the enterprises in the group, which, in accordance with the authority conferred on them by the same provisions, expressed their refusal to bargain collectively with the complainant trade union. Section 334bis of the Labour Code specifies that it is optional for enterprises to bargain with an inter-enterprise trade union:
   • Section 334bis. Notwithstanding the provisions in the second paragraph of section 303, an inter-enterprise trade union may present a draft collective agreement on behalf of its members and workers who join the trade union, to employers employing workers who are members of that trade union; the latter shall be empowered to sign the collective agreements concerned.
   • In order to present such a draft, the trade union is required to do so on behalf of at least four workers in each enterprise.
   • In this context, negotiations were started by a group of workers, in accordance with the general regulations on the subject. The drafts were presented on the same day on which the employers stated their refusal to negotiate. All of them had to be notified by the labour inspectorate on the following dates: Promo Packs (20 October 2003), Center Packs (20 October 2003), Poli Packs (27 October 2003) and Inmobiliaria La Vergara (27 October 2003).
4. 609. The workers complained of failure by the enterprises to communicate with the rest of the workers, as provided by section 320 of the Labour Code, and this was confirmed by the labour inspectorate. Section 320 of the Labour Code reads as follows;
   • Section 320. The employer shall notify all the other workers of the enterprise that a draft collective agreement has been presented, and the workers shall have a time limit of 30 days, counting from the date on which the notification was made, to present drafts in the form and under the conditions laid down in this Book or to support the draft that was presented.
   • The last day of the period referred to in the preceding paragraph shall be understood as the date on which all the drafts are presented, for purposes of calculating the time limits prescribed in this Book for responding to the drafts and initiating negotiations.
   • The employers communicated their reply to the bargaining committees of Promo Packs and Center Packs on 3 November 2003. These committees had until 29 November to formulate objections as to legality. The employers acted in conformity with the law with regard to the presentation of these drafts, given that, in their view, the bargaining committees had not been appointed in accordance with the provisions of section 326 of the Labour Code, which reads as follows:
   • Section 326. Representation of workers in collective bargaining shall be carried out by a bargaining committee composed as indicated below.
   • If the draft collective agreement is presented by a trade union, the bargaining committee shall be the executive committee of that trade union, and, if a number of trade unions made a joint presentation, the committee will consist of the officers of all of them.
   • If a draft collective agreement is presented by a group of workers joining together for the sole purpose of bargaining, a bargaining committee shall be set up in accordance with the following rules:
     • (a) in order to be elected as a member of the bargaining committee, the candidate shall meet the same requirements as those for being an officer of a trade union;
     • (b) the bargaining committee shall consist of three members. However, if the bargaining unit consists of at least 250 workers, five members may be appointed; if it consists of at least 1,000 workers, seven members may be appointed; and if it consists of at least 3,000 workers, nine may be appointed.
     • (c) the members of the bargaining committee shall be elected by secret ballot, which shall be held in the presence of a certifying officer, if there are at least 250 workers; and
     • (d) each worker shall have the right to two, three, four or five votes (which cannot be accumulated) depending on whether the bargaining committee consists of three, five, seven or nine members, respectively.
   • The employer shall have the right to be represented in the negotiations by up to three agents who belong to the enterprise, which may also be understood to include members of its board of directors and partners authorized to manage the enterprise.
5. 610. In this context, the bargaining committees failed to avail themselves, within the time limit, of the possibility of formulating objections and, hence, in accordance with the doctrine, including that contained in Decision No. 4431/106 of 20 June 1998, this was understood as signifying their acceptance of the employers’ reply and observations. Notwithstanding the above, in both enterprises a collective agreement was signed for a term expiring on 30 August 2006, of which the labour inspectorate was notified by the enterprises on 21 January 2004.
6. 611. With respect to the collective bargaining involving the other two enterprises, i.e. Inmobiliaria La Vergara and Poli Packs, the employers discharged their obligation to inform the other workers, in accordance with section 320, and this was confirmed by inspectors during an inspection visit.
7. 612. On 1 December 2003, the employer sent a copy of the replies communicated on 28 November and 1 December, respectively. In its reply to the draft collective agreement, the first enterprise made certain observations as to legality, impugning one of the members of the bargaining committee as a person who was not employed by the enterprise, as well as the lack of a quorum to bargain, given that the draft was accompanied by a list of four workers. The bargaining committee also formulated its own objections as to legality. The reply of the second enterprise also referred to the absence of a quorum, since only four workers were involved.
8. 613. In regard to the above replies, the Maipo District Labour Inspectorate issued Decisions Nos. 450 and 451, both dated 9 December 2003, taking note of the lack of a quorum to negotiate. Notwithstanding the above, the bargaining committees requested a certifying officer to vote on the last offer or a strike, but this request was not accepted by the labour inspectorate.
9. 614. Notwithstanding the above, the Labour Directorate considered, in accordance with the law, that the lack of the necessary quorum to negotiate, which was not denied during the time limit by the bargaining committees, necessarily entails termination of the bargaining process, and hence the workers were no longer covered by immunity and there were no grounds to initiate an investigation to obtain the reinstatement of the dismissed workers, but there was reason to open an investigation on the grounds of anti-union practices.
10. 615. As a result of that investigation, it was confirmed that pressure had been brought to bear by the enterprises in regard to the election of staff delegates and that trade union members had been pressured to withdraw from the union during the collective bargaining process.
11. 616. This investigation led to the filing of a complaint of anti-union practices, Case No. 7939 of 2002, which was examined by the First Court of the First Instance of San Bernardo, which has recently handed down its judgement, which is not yet final, upholding the part of the complaint concerning undue pressure on the workers to resign from union membership, ordering that this conduct cease and imposing a fine of 75 monthly tax units on the enterprise. It did not uphold the complaint referring to employer interference in the election of the staff delegate. A second complaint has been filed on this subject by the executive committee of the Inter-enterprise Trade Union, and this is currently under investigation.
12. 617. On 6 April 2004 the operations manager of the PLASTYVERG enterprise reported by telephone that premises of the enterprise had been taken over by five trade union delegates and four workers, supported from outside by a group of about 15 persons, and the situation was dealt with through the intervention of police officers, who only acted by their presence.
13. 618. On 29 March 2004 the executive committee of the Inter-enterprise Trade Union presented to the Labour Directorate a copy of a note sent to the Governor of the Metropolitan Region, requesting that the police forces refrain from intervening in the demonstrations that the workers would be carrying out in protest against the anti-union dismissals.
14. 619. Lastly, at the meeting held on 16 April 2004 between the Director for Labour and the Exporters’ Association, to which the PLASTYVERG group is affiliated, it was agreed that mediation be offered as an alternative means of solving the disputes that had arisen between the enterprises and the trade union, and this issue will be taken up in the near future.
15. 620. As regards the suggestion to request information from the employers’ organization concerned, so that the Committee on Freedom of Association might take its views into consideration, as well as those of the PLASTYVERG group, the Confederation of Production and Trade (CPC), the employers’ highest level organization, was consulted, and it transmitted the request to the president of the PLASTYVERG group, who submitted a file containing a considerable amount of information and photocopies of supporting documents, and giving the point of view of the enterprise and the employers’ organization in reply to the complaint presented to the ILO. According to the enterprise:
    • – Mr. José Saavedra committed a serious breach of his duties under his employment contract by getting drunk on 17 September 2003 as he was carrying out his normal tasks, and said that he would seriously damage the enterprise if he were dismissed; in addition, he used vehicles belonging to the enterprise without authorization, photocopied confidential information and spoke disrespectfully to the manager and deputy manager; he had threatened to shoot a worker in the presence of others. For all of these reasons, he was dismissed and asked to leave the house that had been provided during the employment relationship, and was provided with other accommodation (for up to 90 days until he found somewhere to live), in which he would not have direct access to confidential information. Only on 27 September was the enterprise provided with formal certification that Mr. Saavedra and Mr. Luis Labarca had been elected as trade union delegates on 22 September.
    • – Given the recalcitrance and lack of commitment displayed by Mr. Luis Labarca in his duties as nightwatchman and guard, during which he allowed free access to the installations to Mr. Saavedra, failed to carry out his night rounds, etc., the enterprise decided to terminate the employment contract on 27 September, of which he was informed, and his severance pay was calculated, with all the wages due. Upon being notified he submitted a copy of certificate No. 2185 of the labour inspectorate certifying that he and Mr. Saavedra were trade union delegates, and hence the dismissal was annulled in view of the trade union immunity he enjoys as a delegate. Mr. Labarca’s refusal to discharge his duties at work prompted the enterprise to issue a communication dated 30 September requesting him to improve his conduct and discharge his duties to the best of his ability. On 4 October Mr. Labarca decided to resign from the enterprise for strictly personal reasons which did not allow him to carry out his duties properly and, in addition, requested an increase in his severance pay in relation to an outstanding debt with a compensation fund. The enterprise accepted his request and his employment was terminated on 6 October in the presence of a notary. He also resigned as trade union leader. Copies of these documents are attached.
    • – In the light of the above, one has the impression that Mr. Saavedra and Mr. Luis Labarca were using the trade union to negotiate their departures and gain financial advantages from their trade union office. These facts prompted dozens of members to resign from the trade union, as all the workers had witnessed the bad faith displayed by these trade union leaders.
    • – Concerning the dismissal of Mr. Pablo Villavicencio, allegedly a member of the Inter enterprise Trade Union, this took place on 27 September and it was only on 8 October, i.e. 11 days later, that the Inter-enterprise Trade Union submitted the list of members together with the draft collective agreement. Prior to that date, the enterprise was not aware of the list of members of the trade union. Finally, with the workers’ consent, his employment was terminated in the presence of a notary, by mutual agreement between the parties. His termination agreement is attached.
    • – Similarly, in the case of Mr. Daniel González, the worker signed his termination agreement in the presence of a notary on the grounds of mutual consent of the parties, on 7 October, and it was only on 10 October that the list of trade union members including his name was presented; it is patently untrue that his electricity and water supply were cut off. His termination agreement, on grounds of mutual consent of the parties, is attached.
    • – In the case of the worker Luis Martinez, the enterprise decided to terminate his employment contract on 24 September. Only five days later, on 29 September, the worker presented a certificate stating that he was elected as a trade union delegate on 23 September, prior to the dismissal, and he was therefore reinstated in the enterprise. Since the worker had been away from his post for five days, and shifts had been reorganized to cover his absence, he was assigned to another workplace. The worker expressed his disagreement, and therefore the enterprise reassigned him to his previous post and he withdrew his complaint on 15 October, having been transferred to his original post. Supporting documents are attached, including documents in which this worker and four other trade unionists agreed to terminate their employment relationship and waive all legal claims.
    • – Given the pressure and hostile climate in the enterprise caused by the presence of a bus broadcasting slogans over loudspeakers and notices referring to a strike in the enterprise, the workers who were not members of the Inter-enterprise Trade Union decided to organize themselves quickly and appointed staff delegates, including Mr. Gerardo Díaz. This initiative by the majority culminated on 8 October, when the workers presented lists of signatures and tax registration numbers to the labour inspectorate, to officially ratify the election of the staff delegates. Each list clearly identified the enterprise in question and the identity of the staff delegate whom the workers supported. Mr. Díaz sent a copy of the communication presented to the labour inspectorate on the same day, and all the head of the personnel department did was to inform the rest of the organization that Mr. Gerardo Díaz had been elected as staff delegate.
    • – The enterprise had never refused to receive its workers, much less trade union or staff delegates. Given that the enterprise had exercised its statutory right under section 334bisA to refrain from bargaining with the Inter-enterprise Trade Union and given the pressure brought to bear by that trade union in the form of telephone calls to enterprise managers outside office hours, etc., it was decided that persons outside the enterprise would not be received, while keeping the channels of communication with all of its employees open.
    • – At the same time as the election of staff delegates in accordance with the law was presented (confirmed by the labour inspectorate), the workers submitted to the enterprise a number of demands reflecting the concerns of the workers they represented, and the enterprise, bearing in mind the tough competition the enterprise was facing, but aware of its workers’ needs and the reasonable nature of their demands, decided to accede to them. These demands mainly focused on compensation for the loss of purchasing power of their remuneration. In accordance with the agreement signed by the staff delegates, the workers who had not received wage increases in the last year were granted the equivalent of 200 per cent of the consumer price index for the last 12 months. It was also agreed that they would receive another increase a year later and that they would be issued with work clothes according to a fixed schedule. These staff delegates were freely elected from among their peers and are not a group of workers having close ties to the enterprise, as the complaint disparagingly puts it, but a group of workers representing more than 90 per cent of the enterprise workforce, who defended their enterprise against leaders that do not represent their interests and do not care about the welfare of the enterprise or its workers, or about maintaining a good working climate.
    • – On 10 October, the Inter-enterprise Trade Union presented a draft collective agreement, and the enterprise, acting in accordance with the law and within the legal time limit of ten days, exercised the right conferred on it by section 334bisA, according to which it is optional for the employer to negotiate with the Inter enterprise Trade Union, and accordingly opted not to bargain with the union. On the same day, 20 October, after the enterprise had stated its intention not to negotiate with the Inter-enterprise Union, the group of workers who were members of that union presented the same draft collective agreement, with the same format and with the same letterhead of the Inter-enterprise Trade Union, without showing any evidence that they had met to elect a bargaining committee as provided by section 326 of the Labour Code. A number of members of this trade union expressed surprise at this new presentation of a collective agreement and of persons elected as the bargaining committee, saying that they had not been consulted to that end.
    • – Given the degree of verbal and written violence and the intervention of persons from outside the enterprise who disturbed the workers with trucks fitted with loudspeakers, and notice boards and the publication of articles in a CUT newspaper, it was decided not to allow access to internal files used by the enterprise to publish production statistics, communications on ISO standards, internal communications, etc. Meanwhile, in response to this external intervention, most of the workers increasingly supported the staff delegates, seeing the way in which the enterprise was being attacked and prevented from working peacefully and reaching agreement with the workers to ensure the smooth running of the enterprise. Many workers decided to resign from the Inter-enterprise Trade Union, but the latter refused to accept their resignation. In December 2003, an article appeared in the newspaper Chile Justo, mentioning that that trade union was submitting a complaint against the State of Chile. In its complaint, it stated that, on 26 November, the general manager told Mr. Sergio Cornejo to withdraw from the trade union, which is absolutely untrue. What is true is that the workers continued to resign from the outsider trade union because it came from outside the enterprise and behaved badly.
    • – In its reply to the draft collective agreement, the enterprise levelled serious objections as to its legality in terms of form and substance with regard to the manner in which it was presented and handled, and the workers’ group did not contest the enterprise’s observations within the legal time limit and, hence, according to section 331, the collective agreement is taken to have not been presented. This is even more clear if one considers that, in communication No. 1756 dated 10 November, the Maipo labour inspectorate set the time limits for each step of the bargaining process; the enterprise then sent a letter to the labour inspectorate requesting a decision on what had been stated in the Labour Relations Unit of the labour inspectorate concerning the fact that the workers’ group had not contested or expressed its views on the serious objections as to legality formulated by the enterprise, the silence of the bargaining committee was taken to mean acceptance of the objections, thus putting an end to the bargaining process. Decision No. 452 of the labour inspectorate clearly states that the bargaining committee of the workers’ group presented its objections after the time limit had expired. The bargaining process is a regulated process and therefore a minimum amount of requirements and time limits clearly have to be observed by both parties; this was not done by the bargaining committee of the workers’ group.
    • – Notwithstanding the above, the workers held an illegal vote on 9 January 2004, accompanied by considerable publicity and pressure on the workers to vote for the strike or face fines and penalties. This election was attended by staff from the San Bernardo labour inspectorate, sent by the central office of the labour inspectorate, for the sole purpose of serving as certifying officer,
    • – Given the circumstances, and despite its conviction that the bargaining process had ended and that the workers’ bargaining committee had failed to meet the requirements for a regulated bargaining process, and that the labour inspectorate was not putting a stop to illegal acts, the enterprise decided, on 9 January, to mediate between the parties, so as not to obstruct labour relations with its workers. However, although the trade union leaders had been advised verbally by management, they held an illegal strike on Monday, 9 January, for two hours, obstructing free access by workers until members of the labour inspectorate arrived and summoned them in writing to mediation. This negative attitude is not conducive to good relations between employer and workers. All of this disappointed its members who continued to resign from the trade union.
    • – After seven days of negotiations in the Mediation and Conciliation Centre of the labour directorate, the workers’ and the employer’s representatives agreed to sign a collective agreement on Tuesday, 20 January 2004.
    • – Ever since the collective agreement was presented by the Inter-enterprise Trade Union in October 2003, the enterprise has been subjected to several inspections by the labour inspectorate: over 12 visits have been carried out by inspectors to date, including on Sundays, during which they requested access to individual documentation on each worker, whereas on Sunday the personnel department is closed and documentation can only be removed in emergencies; however, the infringement was notified.
    • – Many workers, seeing the persecution and harassment against the enterprise by persons linked to the Inter-enterprise Trade Union, wished to resign from the union in order to support the staff delegates, but were prevented from doing so, as their resignation was not accepted, and they turned to the enterprise management, but it was unable to do anything as this would be construed as anti-union practices. The workers were merely advised to consult the labour inspectorate, since, in accordance with the principle of freedom of association enshrined in article 19 of the Chilean Constitution and Conventions Nos. 87 and 98 of the International Labour Organization, workers are entitled to exercise their right to join or withdraw from a trade union whenever they deem it to be in their interests; this is not the case in the present situation, since the Inter-enterprise Trade Union is not allowing them to resign freely. These are also “anti-union practices” and should be penalized as such.
    • – To date many applications to resign from the outsider trade union have been rejected, and the workers have presented them again. They have even requested the trade union’s by-laws, but this was refused, contrary to the workers’ rights and freedom of association.
    • – The degree of violence and harassment has reached the stage where, on 24 March 2004, pamphlets were being distributed in the private residence of the general manager and his neighbours, accusing him of being “a lying exploiter”, a “specialist in anti-union practices”, etc. This constitutes blatant slander and libel. They also contained a demand for compliance with the collective agreement, whereas the enterprise had never stopped complying with the agreement that had been signed. The watchword is reinstatement of two dismissed workers, who are being paid their severance pay in full, but the Inter-enterprise Trade Union argues that it was not consulted before the workers were dismissed and that in future it will have to be consulted on any dismissal.
    • – In fact, the enterprise has every intention of working in harmony with its workers and fully complying with the terms of the collective agreement with the group of workers who are members of the trade union; what is more, it has extended to the entire enterprise the benefits obtained by the staff delegates, to ensure that the workers are treated equally. The staff delegates have the support of some 90 per cent of the entire workforce of the enterprise. In this connection, the Committee on Freedom of Association is being sent a list of 203 signatures of workers disassociating themselves from the trade union and the complaint presented to the ILO.
    • – On 6 April, the five trade union delegates, supported by 20 people not employed by the enterprise, headed by Mr. José Ortiz Arcos, took over the enterprise and, using physical and verbal violence, blocked access to workers who had come to work. For about three hours the enterprise was awash in a climate of physical and mental aggression, valuable hours of production were lost, output was damaged by a sudden stoppage of the equipment, etc.; many people now feel uneasy, sensing that these acts of vandalism can recur at any moment. As a result of these acts, four workers sustained physical injuries and were provided with medical assistance in clinics; complaints have been filed concerning these injuries and the illegal takeover. Criminal proceedings have been instituted. As a result of the behaviour and arrogance displayed by the Inter-enterprise Trade Union leaders, combined with the takeover of the enterprise, during which the entrances were blocked with chains and workers and management were denied access, several of the union’s members resigned from membership so that to date, on 21 April, less than 5 per cent of the workers support the union and more resignations are being sent daily.
16. 621. In its communication of 20 May 2004, concerning the alleged violations of freedom of association and, more specifically, the impact on the public order of an illegal 24-hour stoppage called by the Single Central Trade Union of Workers (CUT) on 13 August 2003, the Government states that, by decision of 12 August 2003, the Governor of the Metropolitan Region authorized the CUT to hold a public demonstration consisting of six protest marches starting at 10 a.m. on 13 August 2003, whose itinerary would cover a number of streets of Santiago. The decision stated expressly that the marchers would occupy one lane to prevent vehicular and pedestrian traffic congestion.
17. 622. However, on the day in question, according to information provided by the Chilean police force, a total of 214 persons were detained in the metropolitan region on the following grounds: 24 of them for rioting; 177 for grave disorderly conduct; four for grave disorderly conduct and damage to public property; four for carrying incendiary devices; two persons for injuring police officers; one for assaulting a police officer on duty; and two for violation of section 445 of the Penal Code. The Committee is informed that all 214 of these persons have been released.
18. 623. Section 445 of the Penal Code provides as follows:
    • Section 445. Any person who manufactures, sells or has in his or her possession skeleton keys, pick-locks or other tools known to be used for breaking and entering and does not account satisfactorily for their manufacture, sale, acquisition or possession shall be punishable with short-term imprisonment to the minimum degree.
19. 624. Approximately 3,000 persons participated in the authorized event, and incidents were registered when demonstrators attempted to block traffic, contrary to the instructions given by police, with the result that police officers were obliged to use deterrents such as water cannons and tear gas. While it is true that the right of assembly is guaranteed by the Constitution, it is no less true that it is subject to the constitutional requirement that it be exercised peacefully and without the use of weapons. Hence, as these requirements were not met, the uniformed police officers had to intervene to safeguard the public order.
20. 625. Paragraph 13 of article 19 of the Political Constitution guarantees the right of assembly as follows:
    • Constitutional rights and obligations
    • Article 19. The Constitution guarantees to all persons:
21. 13. The right to assemble peacefully without prior permission and carrying no weapons. Meetings at squares, streets and other public places shall be ruled by general police regulations.
22. 626. The incidents described were registered in 17 districts of the metropolitan region.
23. 627. It is alleged that the Youth Protection Service (SENAME) drew up lists of officials who took part in the illegal 24-hour stoppage. The National Directorate of the Youth Protection Service has stated that the National Association of Workers (ANTRASE) did not submit any direct complaint and there are no facts to its knowledge which confirm the accusation that has been made.
24. 628. In no circumstances did the national authority of the SENAME or any other executive body of that institution order that lists be drawn up with the names of participants who responded to the call for a national strike, much less did they intervene or exert influence on employees who are members of the unions of this service to refrain from participating or agree to participate in the events held by those occupational organizations.
25. 629. As regards the acts described in the complaint, the Committee is informed that, normally, when occupational associations call any kind of industrial action, a statistical register is kept of the number of officials who will remain at their posts in order to have a precise idea of the number of staff available in their service and, if necessary, to assign additional staff to those areas which are understaffed. This is aimed at ensuring, as far as possible with the available human resources, continuity of the function assigned to this service by the law, as provided by Act No. 18,575 of 1986 to issue general regulations governing the administration of the State.
26. 630. In this case, the only information requested from the regional directorates of the service was a report on the situation in the regional directorates and its subsidiary centres dealing directly with youth protection in regard to the response to the call for a strike, and to whether or not their institutional functions were being carried out in the normal way. This is in accordance with the powers conferred by the Constitution and the legislation on the authorities and heads of service in respect of ensuring the smooth administrative and technical operation of their institutions. This was communicated in advance verbally to each of the presidents of the occupational associations existing in the SENAME, which did not make any observation at the time concerning the procedure applied by the national directorate of the SENAME.
27. 631. It is important to point out that the SENAME is a state body in charge of protecting and promoting the rights of girls, boys and adolescents aged under 18 years whose rights have been infringed, and the social integration of adolescents who have committed penal offences and are serving sentences of imprisonment by court order. This work is carried out by 26 centres throughout the country, which operate 24 hours a day and 365 days a year, which means that it is absolutely essential for each of them to function without interruption. Hence the concern to maintain staffing levels in these centres which enable them to provide adequate care to the girls, boys and adolescents placed under their responsibility by court decision. This particular characteristic of the SENAME is understood by all of its employees and their occupational associations, who have been notified of the willingness of the service to refrain from interfering in trade union activities, while requesting them to take the necessary steps to ensure that shifts are kept in the different centres throughout the country. This concern is shared by the trade union leadership and has helped to ensure that at no time has any risk been entailed to the direct care provided to boys, girls and adolescents who use the centres under its administration
28. 632. Based on the national legislation in force and in full compliance with international Conventions and standards ratified by the Government of Chile, the SENAME has fully respected agreements concluded with trade unions and, moreover, constantly makes every effort to maintain a fluid, appropriate and open relationship with the four trade unions operating in it: AFUSE, with about 1,370 members, accounting for 56.45 per cent of the entire workforce; ANFUR, with 149 members, accounting for 6.12 per cent; ANTRASE, which signed the complaint to the ILO, with approximately 550 members, accounting for 22.68 per cent; and ARHSE, with 90 members, accounting for 3.7 per cent.
29. 633. Moreover, it has been customary to hold pre-strike meetings with these organizations, either with each association separately, or with all of them, in order to coordinate action and provide necessary support, to help ensure that these organizations carry out their principal objectives under section 7 of Act No. 19,296.
30. 634. It is alleged that the Minister of Education and other senior officials threatened participants in the stoppage of 13 August 2003. In this respect, the Committee is informed that the authorities of the Ministry of Education do not pursue a policy of infringing the trade union rights of its officials.
31. 635. During the terms of office of the governing coalition “Concertation for democracy”, at no time have deductions been made from their remuneration or threats been made when, in the exercise of the freedoms granted them under the legal system, they have participated in demonstrations aimed at improving their rights.
32. 636. As to the dismissal of the teachers Marcela and Patricia Mallea Bustos, this is a matter which lies outside the remit of the Ministry of Education, since the employment relationships of teachers are established directly between the teachers and the education providers and are governed by the “Teachers’ Statute” in the case of municipal providers, and by the Labour Code, in the case of private providers. In the event of unjustified dismissal, it is the labour courts that are competent to rule in the case of teachers and in the private sector, and for the Comptroller-General of the Republic in the case of teachers employed by educational establishments administered directly by the municipalities.
33. 637. As regards the expressions attributed to the Minister of Health, described by the complainant as “threats to public sector workers” aimed at discouraging participation in the illegal strike of 13 August 2003, the Committee is informed that the sentences quoted are extracts from instructions issued by the Minister of Health, which were intended to implement the necessary measures to ensure the normal running of the country’s health services in order to safeguard the provision of health care to users in the face of the call for a work stoppage by trade unions in August 2003. This was done in strict conformity with the legal frameworks in force, and by no means constituted threats to public employees.
34. 638. A request for the use of the police forces is only made in the event of disruption of the normal functioning of health services and hospital establishments, caused by acts of coercion which might affect the care dispensed to patients and users.
35. 639. With regard to the trade unions, the Ministry of Health has acted consistently with government policy, since it has abided by a framework of full respect for the labour rights laid down in the ILO Conventions that are in force in Chile, guaranteeing free and organized participation and negotiation of the workers in this sector, one of its main objectives being to make every effort to achieve harmony between the interests and activities of the institution and those of the trade unions, with the aim of improving communications and avenues for participation in the country’s health system.
36. 640. As regards the allegation that workers employed by Empresa Metro S.A. (the metropolitan underground railway) were “obliged to work 12-hour days”, the Regional Labour Directorate of the Metropolitan Region was consulted, and stated that it was not aware of any complaint regarding excessive daily hours of work allegedly performed on 13 August 2003 in Empresa Metro S.A.
37. 641. The National Labour Directorate carried out a review of its entire inspection system and did not find any request for an inspection by the trade union or the workers employed by the metro.
38. 642. As regards the circumstances surrounding the illegal stoppage called for 13 August 2003 by the CUT, the Committee is informed of the following: on 31 December 2002, the CUT had 303 trade union affiliates in both the public and private sectors, with a membership of 408,562; in the days preceding 13 August 2003 only 14 of the 303 affiliates had confirmed their support for the stoppage; the stoppage was marked by the following acts of violence:
    • – detonation of a bomb at the base of a public electricity post in the Maipú district in the metropolitan region;
    • – detonation of an explosive device in front of the premises of the San Ramón municipal council, San Ramón district, metropolitan region;
    • – placing of devices known as “miguelitos” (a metal device used for puncturing tyres) on a number of main arteries on the periphery of the capital and installation of 15 barricades to block public and private transport in the metropolitan region;
    • – interception and illegal appropriation of a public passenger transport vehicle by a number of persons bearing firearms; they later set fire to the vehicle in the metropolitan region;
    • – confrontation between students of the Universidad de Concepción and uniformed police in Region VIII;
    • – blockage of river transport on the Pedro de Valdivia river using medium-sized vessels in Region X;
    • – slowdown of traffic on Vicuña Mackenna Avenue by collective taxi drivers, who also featured prominently in several incidents involving uniformed police officers;
    • – throwing of a Molotov cocktail into a police vehicle in the metropolitan region;
    • – violent confrontations between police and demonstrators in Alameda Bernardo O’Higgins Avenue. The latter were using Molotov cocktails, stones and paint bags.
39. 643. The Ministry of the Interior considers that what happened on 13 August 2003 was not a nationwide strike called by the CUT, but only partial demonstrations and marches. Absences of part of the workforce were registered in a number of colleges, health clinics and certain public services.
40. 644. As regards reform of the labour court system, the Committee is informed that in September 2003 the Government submitted to Parliament three Bills on the subject: a Bill to amend Act No. 17,322 on the judicial recovery of social security contributions and fines; a Bill establishing new labour courts and courts for the recovery of labour and social security contributions; and a Bill establishing a new labour court procedure.
41. 645. These three Bills are currently before the Chamber of Deputies, whose Labour and Social Security Committee has examined and discussed the content of the first Bill, which, once it is approved, will be submitted to the Chamber of Deputies for discussion and approval, thus completing the first stage of the constitutional legislative process, and will then be brought before the Senate for the second stage of the process. In the meantime, the Labour and Social Security Committee of the Chamber of Deputies will begin discussion of the second Bill establishing new labour courts throughout the country.
42. 646. In its communication of 30 June 2004, with regard to the allegations concerning the HERPA S.A. enterprise, the Government states that, according to information from the labour directorate, on 29 October 2003 a group of workers employed by the enterprise deposited a draft collective agreement in the Maipo District Labour Inspectorate for notification. On 13 November 2003, the Inter-enterprise Union of Metallurgical, Communications, Energy and Allied Workers complained that the employer had not notified the other workers of the enterprise of this, as provided in section 320 of the Labour Code, and had illegally dismissed workers covered by trade union immunity, a situation which has been resolved, according to information provided by the Inspection Unit of the Maipo District.
43. 647. The inspection visit carried out in the Spanish multinational on 14 November 2003 was aimed at verifying the existence of other collective agreements and other workers who should be informed in accordance with section 320 and informing the bargaining committee that the reply was considered to be pending until expiry of the time limit of 30 days, i.e. until 3 December, and that from this date onwards the bargaining committee would have a time limit of five days within which to present objections as to the legality of the employer’s reply. The mediation requested by the employer was terminated on 22 January 2004 without agreement being reached between the parties. On the following day, a legal strike was held with the approval of the eight workers involved. According to information provided by the office manager, on that day access to the enterprise was blocked with chains and the eight workers inside the premises did not allow the employer or the rest of the workers not involved in the strike to enter the premises. The office manager instructed the members of the bargaining committee to allow the workers to enter but they refused to do so. The legal representative of the enterprise refused to continue talks with the workers as long as they maintained this stance.
44. 648. The labour inspectorate offered mediation to both parties for the sole purpose of seeking a rapprochement to open dialogue. It was in this context that the acts that are the subject of the complaint occurred.
45. 649. As regards the unlawful dismissal of and alleged harassment against trade union delegate Néstor Carrasco, compelling him to hand in his resignation, and pressure on members to resign from the trade union, the Government states that these acts led to a commission being established under the Special Investigation Unit of the Metropolitan Region, which confirmed the truth of the allegations, as well as obstruction of the trade union’s activities and harassment of both the delegate and members of the organization. This served as a basis for the complaint filed against the enterprise with the Second Court of the First Instance of San Bernardo, which ordered the reinstatement of Néstor Carrasco, which the enterprise carried out. However, subsequently, on 18 December 2003, Mr. Carrasco signed a voluntary termination of employment.
46. 650. As regards the unlawful dismissal of the workers Alberto Carrasco, Marcos Rojas and Jaime Vera, who were members of the bargaining committee, the Government states that this led to a commission being set up by the Maipo District Labour Inspectorate, which obtained the reinstatement of these workers. An investigation carried out by the Special Unit of the Metropolitan Region confirmed the employer’s refusal to receive the members of the bargaining committee, and to assign them work as agreed. In addition, it found that six workers had been hired before the strike began. The investigation confirmed that the employer had refused to see the trade union leaders, saying that he would only talk to the trade union delegate. As regards non-payment of remuneration, it found that, on the contrary, the employer had in fact paid the remuneration through a deposit into an electronic checking account. As regards the hiring of strike-breakers, it was confirmed that an external enterprise had been contracted to increase the number of security guards in the enterprise. The alleged threats of dismissal were not confirmed.
47. 651. In its communication dated 20 July 2004, the Government states that, according to the Regional Labour Directorate of Region VI, in which the El Teniente copper mine owned by CODELCO enterprise is located, as of June 2004 no complaint had been received from the workers or the trade union concerning the allegations made in the communication of January 2004. On 2 December 2003 the Inter-enterprise Union of Employees of Subcontractors of CODELCO Chile, El Teniente Division (SITECO), presented draft collective agreements intended for different subcontractors to the Rancagua Provincial Labour Inspectorate, together with lists of the workers involved in negotiations, but without the required signatures of each worker. These requests were based on ILO Conventions Nos. 87 and 98, and not on section 334 of the Labour Code. Hence this collective bargaining process was not regulated by that Code.
48. 652. The draft collective agreements allowed each employer a time limit up to 10 December to reply, indicating that once the time limit had expired and no reply had been received, the trade union could declare a strike. It also mentioned a proposal for a meeting to be held on 5 December 2003 to lay down a procedure for the bargaining process; none of the 13 enterprises invited attended that meeting. As a result, the workers undertook protest actions beginning on 16 December. According to information given by the SITECO leader, Danilo Jorquera, the most serious of these was a sit-down strike both in the Caletones foundry and inside the mine. In Caletones, the workers signed an agreement to initiate a collective bargaining in each enterprise, but this did not take place. Inside the mine, uniformed police evicted the workers and detained 100 of them, who were released after taking down their addresses. The police authorities stated that at no time were firearms used, only deterrents such as chemicals and water. The health authorities reported that only two workers had been injured and that the others were declared fit on the same day after having undergone a medical examination.
49. 653. The trade union leadership dropped out of the collective bargaining process; the principal enterprise, CODELCO Chile, El Teniente division, informed its subcontractors that 200 workers could not work in the mines and withdrew their passes.
50. 654. Faced with this situation, the subcontractors dismissed these workers, except for a few trade union delegates covered by trade union immunity. The trade union, through Mr. Luis Salazar, held talks with the principal enterprise with a view to seeking a solution, with the result that CODELCO rescinded its decision to exclude 200 workers from working in its enterprises. No complaint has been filed with the relevant courts in this respect. In recent weeks, the trade union leadership resumed dialogue with the CODELCO Chile enterprise through the Regional Ministerial Secretary for Labour and Social Security, but the outcome is not yet known.

C. The Committee’s conclusions

1. 655. The Committee notes the allegations made by the complainants, referring to: (1) anti-union practices in the PLASTYVERG conglomerate, including dismissals of trade union delegates and members, pressure on members to resign from trade union membership, interference by several enterprises to sideline the trade union and bargain with workers’ delegates appointed by the employer; (2) violent repression of the national strike held on 13 August 2003, despite its peaceful nature; detention of trade unionists, threats and intimidation against workers participating in the strike, use of armoured cars, water cannons and tear gas – including against CUT headquarters – ill-treatment, closure of streets to which access was authorized to demonstrators, assault on the general secretary of the CUT, use of rubber bullets, injury of workers, torture of a detainee, drawing up of lists of strike participants in different institutions and dismissal of a teachers’ union leader and her sister; and (3) violations of trade union rights by the CODELCO state enterprise and the HERPA S.A., Viñas Tarapacá y Santa Helena enterprise.
   • PLASTYVERG conglomerate
2. 656. As regards the allegations concerning the PLASTYVERG conglomerate, the Committee notes the information given by the Government, in particular its statement that the labour directorate carried out an investigation which confirmed that pressure had been brought to bear by the enterprises in regard to the election of staff delegates, and that trade union members had been pressured to resign from membership during the collective bargaining process, as a result of which a complaint was filed with the courts for anti-union practices; the judicial authority upheld part of the complaint relating to pressure on union members to withdraw from union membership, ordered that this conduct cease and imposed a fine of 75 monthly tax units on the enterprise; it did not uphold the complaint referring to employer interference in the election of the staff delegate; in this respect, a second complaint has been filed by the trade union and is currently under investigation; mediation has been offered and this issue will be dealt with in the near future. The Committee notes the statements made by the enterprises concerned in which they reject the allegations of violation of trade union rights and report that criminal proceedings have been instituted against a number of trade union delegates; the enterprises have sent documentation on the termination of the employment relationship of trade unionists José Saavedra, Antonio Labarca, Pablo Villavicencio, Daniel Antonio Duarte Arce and Luis Osvaldo Martínez Duarte, who waived any legal claims; they have also sent a list of 203 workers disassociating themselves from the present complaint before the Committee. In these circumstances, the Committee deplores the anti-union pressure by the enterprise that was confirmed by the judicial authority. Nonetheless, before formulating definitive conclusions on these allegations, the Committee requests the Government to send it a copy of the reports concerning the administrative investigations carried out and all of the judicial decisions which have been handed down.
   • Violent acts
3. 657. As regards the allegations concerning the violent repression of the national strike on 13 August 2003 (assaults on physical integrity, detentions, threats and intimidation, use of tear gas and water cannons, dismissal of two trade unionists, torture of a detainee, etc.), the Committee notes that the Government categorically denies the peaceful nature of the strike, referring to 214 criminal offences including possession of explosive devices, placement of tyre-puncturing devices, illegal appropriation of a passenger vehicle which was subsequently set on fire, violent confrontations, disruption of traffic, etc.; the Government also denies that lists of strikers had been drawn up and that the authorities had issued threats; 214 persons had been detained and subsequently released.
4. 658. The Committee is bound to take note of the obvious contradiction between the allegations and the Government’s reply, deplores any acts of violence which occurred during the general strike, and requests the Government to send any judicial decisions handed down in relation to the criminal proceedings referred to by the complainants or any of the other violent acts mentioned by the Government.
   • HERPA S.A., Viñas Tarapacá y
   • Santa Helena enterprises
5. 659. As regards the allegations concerning the HERPA S.A., Viñas Tarapacá y Santa Helena enterprises, the Committee notes the Government’s reply to the effect that on 29 October 2003 a group of workers employed by the enterprise deposited a draft collective agreement in the Maipo District Labour Inspectorate for notification. On 13 November 2003 the SME complained that the employer had not notified the other workers of the enterprise of this, as provided in section 320 of the Labour Code, and also complained that workers covered by trade union immunity had illegally been dismissed, a situation which has been resolved, according to information provided by the Inspection Unit of the Maipo District Labour Inspectorate. On 22 January 2004 arbitration requested by the employer was terminated without agreement being reached between the parties. On the next day, the legal strike approved by the eight workers involved was carried out. On that day access to the enterprise was blocked with chains and the eight workers on the premises did not allow the employer or the rest of the workers not involved in the strike to enter the premises. Although the office manager instructed the members of the bargaining committee to allow the workers to enter, they refused to do so. The legal representative of the enterprise refused to continue talks as long as the workers maintained this stance. The labour inspectorate offered mediation to both parties. The acts reported occurred in this context.
6. 660. As regards the allegations of unlawful dismissal of and harassment against trade union delegate Néstor Carrasco, compelling him to hand in his resignation, and pressure on members to resign from the trade union, the Committee notes that, according to the Government, the inspection commission confirmed that this had in fact taken place, as well as obstruction of the trade union’s activities and harassment of both the delegate and members of the organization. This served as a basis for a complaint filed against the enterprise with the Second Court of the First Instance of San Bernardo, which ordered the reinstatement of Néstor Carrasco, which the enterprise carried out. However, subsequently, on 18 December 2003, Mr. Carrasco signed a voluntary termination of employment.
7. 661. As regards allegations of the unlawful dismissal of the workers Alberto Carrasco, Marcos Rojas and Jaime Vera, who were members of the bargaining committee, the Committee notes that, according to the Government, these workers were reinstated. An investigation carried out by the Special Unit of the Metropolitan Region confirmed the employer’s refusal to receive the members of the bargaining committee, and to assign them work as agreed. In addition, it found that six workers had been hired before the strike began and that the employer had refused to see the trade union leaders, saying that he would only talk to the trade union delegate (elect); on the first point (the hiring of strike-breakers), it was confirmed that an external enterprise had been contracted but only in order to increase the number of security guards in the enterprise.
8. 662. In these circumstances, the Committee expresses its concern at the anti-union acts perpetrated in the enterprises HERPA S.A., Viñas Tarapacá y Santa Helena confirmed by the authorities, and observes that the latter’s intervention allowed the reinstatement of trade unionists Néstor Carrasco, Alberto Carrasco, Marcos Rojas and Jaime Vera. The Committee requests the Government: (1) to indicate whether the latest administrative investigation in these enterprises gave rise to judicial proceedings and, if so, to inform it of their outcome; and (2) to provide information on the allegations relating to the detention of workers and violent police intervention to evict workers, despite the absence of a court order.
   • CODELCO state enterprise
9. 663. As regards the allegations concerning the CODELCO state enterprise (refusal to bargain collectively with the SME trade union, assault on three trade union leaders in the public thoroughfare, denial of access by trade union leaders to members in the mines, illegal violent intervention by police against strikers, with the result that 115 were detained and released on the same day, 220 dismissals of workers included on blacklists and injuries sustained by 20 workers – one of whom was hit by 20 shots) the Committee notes the information provided by the Government to the effect that during the strike 100 workers were detained and later released after verifying their addresses, that the police did not use firearms, but chemicals and water and only two workers sustained injuries and that the rest were declared fit on the same day. The Committee notes further that the enterprise informed its subcontractors that the dismissed workers could not work in the mines and withdrew their passes from 200 workers, but that this ban was subsequently lifted. Lastly, the Committee notes that no complaint has been filed with the judicial authority and that the trade union leadership has resumed dialogue with the enterprise, through the administrative labour authority.
10. 664. The Committee deplores the acts of violence which occurred, as well as the fact that the Government’s reply does not refer to all the allegations presented (refusal to negotiate, access by trade union leaders to members, use of blacklists, etc.). The Committee recalls that “workers should enjoy the right to peaceful demonstration to defend their occupational interests” and that “trade unions should respect legal provisions which are intended to ensure the maintenance of public order; the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organize the holding and proceedings of their meetings in full freedom” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 132 and 144]. The Committee requests the Government to carry out a full and impartial investigation, including into the injuries sustained by workers, and to inform it of its outcome, as well as the results of the dialogue that has been resumed between the trade union leadership and the enterprise.