Rapport intérimaire - Rapport No. 338, Novembre 2005

645. The complaint is contained in a joint communication from the Federation of Trade Unions of Chilean Television Channels and Production Companies (FETRA-TV) and the Trade Union of the Television Corporation of the Pontifical Catholic University of Chile (Channel 13 TV Union) dated 14 October 2004. FETRA-TV sent additional information in a communication dated 30 March 2005.

1. 646. The Government sent its observations in communications dated 21 February, 8 March, 6, 14 and 18 April and 2 August 2005.
2. 647. 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. 648. In their communication of 14 October 2004, the Federation of Trade Unions of Chilean Television Channels and Production Companies (FETRA-TV) and the Trade Union of the Television Corporation of the Pontifical Catholic University of Chile (Channel 13 TV Union) allege that labour practices which violate union rights have taken place at the Television Corporation of the Pontifical Catholic University of Chile (Channel 13 TV), intended to weaken and eventually suppress the Channel 13 TV Union. The complainants allege mass dismissals of workers with contracts of indefinite duration since 2001 and the use of staff supply companies, which provide workers through subcontracting, to carry out the main company’s functions, such as camera operators, lighting technicians, audio and video operators, stagehands, etc. The complainants state that the relevant labour inspectorate examined the situation, produced a report and imposed fines for infringement of the Labour Code. In fact, the complainants continue, in the cases mentioned, there is a relationship of subordination or dependence with the Channel 13 TV, and the alleged individual contracts that the workers have with external enterprises do not match the reality of employment, with the third party in reality becoming an “apparent employer”. There exists, therefore, the “simulation” referred to in article 478 of the Labour Code. This system, in the complainants’ view, constitutes an anti-union practice contrary to Conventions Nos. 87 and 98 and the Labour Code, since it has weakened the trade union and prevented exercise of the right to collective bargaining, as these workers no longer have an employment contract with Channel 13 TV; as a result, the number of union members has fallen (from 723 members in 2000 to 491 in 2004), despite the fact that the total number of people working at Channel 13 TV is around 1,000.
2. 649. Furthermore, the complainants allege that Channel 13 TV engages in the practice of false service provision for fees (contracts for service provision), since workers are, in reality, providing services as dependent workers governed by the Labour Code. This practice affects trade union rights, since these workers are denied all the rights conferred on them by the Labour Code, such as the right to join a trade union and the right to bargain collectively.
3. 650. Similarly, during the collective bargaining process at the Channel 13 TV begun on 20 May 2004, the workers involved exercised their right to strike, as established in article 374 of the Labour Code, in a strike starting on 13 July 2004. After the strike had begun, however, Channel 13 TV, in violation of section 381 of the Labour Code, proceeded to replace, illegally, numerous workers involved in the legal strike. This illegal replacement of workers brought the legal strike to an abrupt end, and meant that the workers engaged in collective bargaining were obliged to accept an extension of the previous collective agreement with no readjustment of salaries or benefits, as required by the provisions of section 369 of the Labour Code. Labour inspectors have confirmed these anti-union practices on the part of the corporation, following complaints to the appropriate courts.
4. 651. In its communication of 30 March 2005, FETRA-TV states, with regard to the contracting of television channel staff through third parties, that there are currently some 300 people working at Channel 13 TV who are now permanent staff contracted through third parties. Furthermore, what the company refers to as “externalization of labour” or “subcontracting” is, in reality, contracting through intermediaries, using pseudo-employers who are no more than mere suppliers of staff. This situation is not provided for in the Labour Code, and such conduct is therefore illegal and has deprived hundreds of workers of the right to belong to a trade union and bargain collectively with Channel 13 TV. Reduction in wages and loss of all collective benefits have occurred as a direct and provable consequence of the above, creating discrimination between workers, some of whom are contracted directly by Channel 13 TV, who belong to a union and enjoy collective benefits, and others, who perform the same work but for lower wages, with no collective benefits and no opportunity to join a trade union. The system thus functions as a mechanism to blackmail or exert undue pressure on workers belonging to the union, since, in operations with a high professional and/or pecuniary value, cheaper workers with no collective rights, such as travel, accommodation and meals during working hours, and who are less regulated, are often chosen over others, leading to a constant tacit threat of dismissal for reasons of cost.
5. 652. This has coincided with an ostensible fall in union membership. Of the above total number of workers contracted through third parties, around 40 workers are ex-members of the union, who can therefore no longer bargain collectively with the Channel 13 TV administration, since they have lost all collective benefits and are now working in the same jobs as before but for lower wages. The other 260 workers contracted have not been able to join a union or bargain collectively, either because they worked under temporary contracts for some years (and therefore not enjoying such rights despite having provided services for a long time) and were then transferred to contracts made with third parties, or because they came in directly via the latter route; all these without exception qualify as permanent Channel 13 TV staff whilst having no contractual recognition or rights stemming therefrom.
6. 653. The reduction in the number of union members has left the union with 450 members as at March 2005. This reduction is due in some cases to workers being afraid to exercise their right to join a union for fear of losing their jobs (it is a fact that, in the face of various and sustained legal procedures which last a long time but yield few or no results, feelings of impunity and defencelessness create an atmosphere of fear). In March 2005, there were still around 1,000 workers providing services to the television channel, either contracted directly by the channel or subcontracted.
7. 654. Concerning the false-fee contracts to provide services, the television channel’s administration has continued to use such contracts in spite of the complaints made to the labour inspectorate; one should emphasize the complaint relating to the last round of collective bargaining, consisting of contracting replacement workers during the strike (around 300 people) without complying with the requirements laid down by law.
8. 655. Channel 13 TV was, for the sixth consecutive year, in charge of the Viña del Mar International Song Festival, one of the most important of its kind in Latin America. During this event, operational control for internal sound at Quinta Vergara, the venue in which the festival was held, was assigned to a contracting enterprise, excluding four of the television station’s operators who had fulfilled that function in previous years. Among them was the secretary of the corporation’s trade union, Mr. Iván Mezzano, who directly suffered financial loss and professional damage resulting from the situation. In his case, the trade union immunity established in the Labour Code was also violated.
9. 656. During the previous round of collective bargaining (June 2004) some workers were excluded from the negotiating group by having signed an annex to the individual employment contracts imposed by the enterprise preventing them from bargaining collectively, fearing for their job security. Others who were contracted by job or task were also excluded, thereby losing access to benefits which had been negotiated collectively. At present, the union is unsure how many new members could have been put under pressure to sign such annexes, since the enterprise carried out these manoeuvres without the knowledge of the union officials.
10. 657. As another form of anti-union practice by the enterprise, immediately after the end of the strike all those workers who had not been part of the bargaining group were paid a bonus of 180,000 pesos (30 July 2004), whilst those who had bargained were docked 20 per cent of their wages for the days when they had exercised their right to strike, which constitutes open discrimination between those workers who bargained collectively and those who did not.
11. 658. As a result of serious violations of the collective agreement, immediately following the legal strike of July 2004, the union was obliged to submit successive complaints (four to date) to the law courts. Three of these concerned the non-payment or partial payment of certain benefits and one concerned a group of workers (50) who, participating for the first time in the collective bargaining process, were excluded by a unilateral decision taken by the Channel 13 TV’s administration from some or all of the benefits enjoyed by other members following the previous round of bargaining, in spite of the channel having accorded the same benefits to other workers not belonging to the union. As a consequence of the complaints submitted, there have recently been incidents of direct harassment of union members by the undermanagement of human resources at Channel 13 TV, from whom written personal communications have been sent to all members of the union for the explicit purpose of informing them that, as part of one of the legal procedures taking place, the enterprise has been obliged to breach confidentiality with regard to the personal data held on the worker to whom the communication is addressed, because, at the request of the union, the court ordered copies to be sent of the wage payments and contracts of each complainant. In the communications, the enterprise’s undermanagement describes the union’s actions as “inconvenience caused” to the enterprise; the aim of this is simply to intimidate workers who belong to the union. Coincidentally, on the same day as these communications were sent by Channel 13 TV, three union members with contracts of indefinite duration were dismissed. This policy, on the part of Channel 13 TV, has caused various members to resign and clearly demonstrates the harassment to which the union is being subjected, since this policy has caused serious concern among some of the more than 400 workers whose rights have been demanded through legal channels.
12. B. The Government’s reply
13. 659. In its communications of 21 February, 8 March and 6, 14 and 18 April 2005, the Government states that the Chilean legislation brings together the principles of ILO Conventions Nos. 87 and 98 and provides for inspection mechanisms and administrative sanctions which demonstrate a respectable level of efficiency, so that the can impose fines in the case of infringements of labour legislation, make such infringements known to the judicial authority and ensure respect for the principles of Conventions Nos. 87 and 98.
14. 660. Similarly, Chapter IV of the Labour Code of the Republic of Chile establishes and regulates in a complete and concise manner a procedure for collective bargaining, which is not solely reserved for established trade union organizations but is also available to workers coming together for this specific purpose, in the event that they are not already members of a union.
15. 661. In the same manner, the labour legislation clearly recognizes one of the principal aims of guaranteeing freedom of association, which is to allow employers and employees to gather together in organizations independent of the public authorities with the ability to determine, through collective agreements freely entered into, salaries and other employment conditions.
16. 662. Nevertheless, in recognition of the severe problems of legitimacy experienced by enterprise trade union organizations in the face of their direct counterparts and the process of collective bargaining, the Government has instituted a series of activities at national level, in conjunction with various ministries, with the aim of promoting and legitimizing dialogue processes within enterprises.
17. 663. As is recognized by the Federation of Trade Unions of Chilean Television Channels and Production Companies (FETRA-TV) in its submission to the ILO, the inspection mechanisms and administrative sanctions provided for in Chilean legislation demonstrate a respectable level of efficiency. Thus, in the case of the Television Corporation of the Pontifical Catholic University of Chile (Channel 13 TV), the appropriate regional labour inspectorate (the North-Eastern Labour Inspectorate) was able to visit the headquarters of the enterprise and, following due inspection, proceeded to levy for various reasons the fines provided for in the Labour Act and to inform the ordinary labour courts of the infringements; the enterprise has appealed against these administrative fines.
18. 664. Furthermore, the Government, following meetings with the parties involved in this labour dispute, cannot fail to recognize the lamentable deterioration in labour relations between Channel 13 TV and the trade union there. In this respect it should be borne in mind that strike action is very often symptomatic of deeper and more widespread problems present, and the workers’ complaint has its immediate roots in a labour dispute which was not properly resolved by the parties. Thus, both the enterprise and the workers recognize that they are currently witnessing a breakdown in their relations which were, for many years, harmonious. It should be pointed out that around 90 per cent of workers at the television station belonged to the union, including the station’s top directors, who, in the majority of cases, acted to promote a series of trade union initiatives.
19. 665. This harmonious relationship has deteriorated as Channel 13 TV has entered an economic crisis which it itself recognizes. Against the background of this crisis, the enterprise decided to externalize some services which workers considered fundamental, a policy which the union views as a threat to freedom of association, given that the number of trade union members at the enterprise has fallen significantly.
20. 666. This policy has exceedingly worried the Government, since the provision of services by third parties has a weak legal basis, which allows enterprises, while not flagrantly breaking the law, to pursue their production activities without acknowledging the degree of management and control needed to recognize the subordination and dependence required for an employment relationship to exist. The Government has therefore submitted a draft Act to Parliament intended to regulate this practice in order to protect workers who are the weaker party in an employment relationship.
21. 667. With regard to the replacement of workers involved in a general strike during the process of collective bargaining, the Government states that, following its inspection, the North-Eastern Labour Inspectorate was able to observe that: (1) the process of collective bargaining in question involved 509 workers at the enterprise, who voted for and carried out four days of strike action, at the end of which, on 17 July 2004, the bargaining committee invoked the provisions of section 369.2 of the Labour Code; and (2) the North-Eastern Labour Inspectorate confirmed that 120 workers had been replaced and imposed fines to a total of 5,580 monthly tax units on the enterprise, a decision which was then appealed by the enterprise before the Fourth Court of Labour Law of Santiago, which, in its first ruling given on 4 November 2004, dismissed the complaint of unfair practices made against Channel 13 TV. For its part, the Directorate of Labour, using the powers invested in it by law and procedure, appealed the decision. The television station’s trade union exercised the same right. Given that legal proceedings are still ongoing, it is impossible to state whether or not the enterprise committed the alleged anti-union acts.
22. 668. With regard to the dismissal of 100 workers belonging to the union prior to the start of the collective bargaining process, the Government states that workers at the enterprise maintain that this would have meant the enterprise engaging in practices damaging to freedom of association. The Government adds that, following inspections by the North-Eastern Labour Inspectorate, an infringement of labour legislation was reported to the Fourth Court of Labour Law of Santiago, Case No. L-2561-2004. In its first ruling, given on 26 August 2004, the circuit judge rejected the inspectorate’s position, finding in favour of the Channel 13 TV.
23. 669. However, both the Directorate of Labour, through the North-Eastern Labour Inspectorate, and the trade union at the enterprise have begun appeals and annulment proceedings in respect of this decision. This means that the case is still ongoing, and it is therefore difficult to determine whether the enterprise failed to comply with legislation ensuring freedom of association.
24. 670. With regard to the simulated contracting of workers through third parties, punishable by fine under section 478.1 of the Labour Code, the Government states that, after due inspection by the Regional Labour Inspectorate for North-East Santiago, an administrative fine was imposed on the television corporation under resolutions of 21 July 2003. Specifically, administrative fines were levied against the enterprise for infringement of section 478.1 of the Labour Code, that is, simulating the contracting of workers through third parties, and for failing to declare in writing employment contracts with the workers listed in the decision to impose fines, failing to maintain a register of attendance for the purposes of recording ordinary and extraordinary hours worked in respect of the same workers, and failing to provide on payment of wages a payslip showing the amount deducted and the way in which deductions were calculated. The Pontifical Catholic University of Chile lodged a legal appeal against the administrative fines with the Sixth Court of Labour Law of Santiago. The case is now in the last phase of being examined and decided upon, and a ruling from the court is awaited.
25. 671. In its communication of 2 August 2005, the Government refers to the communication of FETRA-TV dated 30 March 2005 and states that the Channel 13 TV Union had lodged a request with the Third Court of Labour Law of Santiago in 2005. Consequently, the tribunal requested information from the Labour Directorate of the Ministry of Labour and Social Security which replied through an investigation report. The Government indicates that the allegations of FETRA-TV are, in general, the same as those made in the mentioned judicial request.
26. 672. Lastly, the Government attaches comments from Channel 13 TV, regarding the complaint, according to which workers at the enterprise have suffered no damages caused by the corporation which prevent them from exercising their union rights. Therefore, Channel 13 TV cannot easily be accused of undermining freedom of association. During 2002 and 2003 the corporation began a process, legitimate and within the law, of externalizing various functions inherent in or connected to its normal operations. This process of externalization (productive decentralization) occurred following a series of actions intended to rationalize and restructure its various dependent sections and bodies, that is, following a natural process of adapting to the changes which have occurred in the television industry, both at national and international level.
27. 673. According to the corporation, the Directorate of Labour, through its inspectors, applied different criteria to this type of externalization, which led to a fine for “simulating contracting of workers through third parties, in this case external enterprises”. In Channel 13 TV’s view, this fine is not only arbitrary and illegal, but also fails to reflect the reality of the situation. The television corporation has never attempted to use subterfuge in order to avoid complying with legislation, and has certainly never taken actions allowing the existence of illicit simulation to be presumed. On this basis, Channel 13 TV lodged a legal appeal against these fines with the Sixth Court of Labour Law of Santiago, Case No. 3855-2003. This case is currently being examined for the first time, and is awaiting a ruling from the examining body.
28. 674. With regard to alleged anti-union practices during collective bargaining, according to the corporation there was in fact no contracting of new workers, nor was there any reassigning of duties which could eventually have threatened the legitimate exercise of the right to strike. Explanations were provided to the inspectors, and documented; it was explained that the last offer made to the trade union organization complied with each and every one of the requirements of section 381 of the Labour Code and that no new workers had been contracted. Furthermore, it was explained to them that those workers still dependent on Channel 13 TV were non-unionized staff who had been providing services to the corporation for some time, and who carried out duties in accordance with their respective contracts, and that in no way could they be classified as replacement staff. None of this prevented the fine in question being levied. The judicial authority found in favour of the enterprise in its first ruling and an appeal has been lodged by the Directorate of Labour. With regard to alleged employment contracts in the form of fee contracts, the corporation states that it maintains a high level of definition in its employment relations in their various forms (viz, indefinite contracts, fixed-term contracts and contracts by job, among others). The participation of workers under fee contract to provide services is exceptional in this corporation and represents a very small percentage of the total. Situations in which proceedings have been brought against Channel 13 TV in this regard have only occurred occasionally, and in several of these cases rulings were given in favour of the enterprise, expressly confirming the legality of such contracts.
29. 675. With regard to the alleged illegal dismissal of workers in order to affect the normal functioning of the trade union, according to the corporation, the labour inspectorate presented a complaint of anti-union practices to the judicial authority based on a complaint from the union; the judicial authority considered that there were no grounds for sanctioning Channel 13 TV for alleged anti-union practices, and accepted that all the dismissals in question conformed to the criteria that were strictly economic and/or for internal restructuring purposes; according to the corporation, the majority of workers who left the enterprise did so on the basis of agreements ratified by the trade union, for reasons such as early retirement or voluntary redundancy. Appeals and annulment proceedings were brought by the labour inspectorate and the union in respect of this first ruling; the annulment proceedings brought by the labour inspectorate were deemed inadmissible; the appeals proceedings are still awaiting a ruling.

C. The Committee’s conclusions

1. 676. The Committee observes that in this case the complainants allege the replacement of workers involved in a legal strike in 2004 at the Television Corporation of the Pontifical Catholic University of Chile (Channel 13 TV); the use of staff supply companies and false contracts for provision of services instead of employment contracts, leading to a fall in union membership, for anti-union purposes; mass dismissals since 2001 and other anti-union practices; discrimination against the general secretary of the union by assigning certain operations for which he had been responsible to a contracting enterprise; pressure from the corporation for workers to abandon collective bargaining, along with economic incentives for those who were not part of the bargaining group prejudicial to those who were members; failure to comply with the provisions of the collective contract; the recent dismissal of three union members; impossibility for the union to recruit members contracted through external enterprises; and the signing by workers of individual contracts imposed by the corporation which exclude them from collective bargaining.
2. 677. The Committee takes note of the information provided by the enterprise, according to which the process of outsourcing (using external enterprises) was carried out in accordance with the law and without any actions allowing the existence of illicit simulation to be presumed, and was intended to rationalize and restructure its various dependent sections in order to adapt to the changes which have occurred in the television industry; the enterprise therefore lodged an appeal with the judicial authority against the fines imposed by the Directorate of Labour for “simulating contracting through third parties, in this case external enterprises”; the appeal is awaiting a ruling. According to the enterprise, no new workers were contracted during the strike and those workers still dependent on the enterprise were non-unionized staff who had been providing services for some time; the judicial authority (rejecting the complaint made by the administrative authority of alleged unfair practices) found in favour of the enterprise in its first ruling (an appeal lodged by the Directorate of Labour is currently pending). With regard to the use of fee contracts (contracts to provide services), there is a very small percentage of these at the enterprise; on very rare occasions proceedings have been brought against Channel 13 TV in this regard, and in several of these cases rulings were given in favour of the enterprise, expressly confirming the legality of such contracts. With regard to the alleged illegal dismissal of workers in order to affect the normal functioning of the trade union, the labour inspectorate presented a complaint of anti-union practices to the judicial authority based on a complaint from the union. According to the enterprise, the judicial authority considered that there were no grounds for sanctioning Channel 13 TV for alleged anti-union practices and accepted that all the dismissals in question conformed to criteria that were strictly economic and/or for internal restructuring purposes; according to the enterprise, the majority of workers who left the enterprise did so on the basis of agreements ratified by the trade union, for reasons such as early retirement or voluntary redundancy. Appeals and annulment proceedings were brought by the labour inspectorate and the union in respect of this first ruling; the annulment proceedings brought by the labour inspectorate were deemed inadmissible; the appeals proceedings are still awaiting a ruling.
3. 678. The Committee takes note of the Government’s statements, according to which: (1) labour relations between the parties have badly deteriorated as a result of an economic crisis recognized by the enterprise, due to which it decided to outsource some services that workers considered fundamental, a policy which the union views as a threat to freedom of association, given that the number of trade union members at the enterprise has fallen significantly; (2) the Government has submitted a draft Act to Parliament to regulate this practice and protect the weaker party in employment relationships; (3) during the four-day strike called by the union, the labour inspectorate confirmed the existence of 120 replacement workers and imposed a fine of 5,580 monthly tax units on the enterprise, in respect of which the enterprise lodged an appeal with the judicial authority; the judicial authority rejected the complaint of unfair practices against the enterprise in its first ruling and the Directorate of Labour appealed the decision, as did the union, and legal proceedings are therefore continuing; (4) the labour inspectorate submitted a complaint of practices violating freedom of association to the judicial authority in respect of the dismissal of 100 workers and the labour inspectorate, following its inspection, submitted the same complaint to the judicial authority, which found in favour of the enterprise in its first ruling; the labour inspectorate and the union have brought appeals and annulment proceedings which have not yet been completed; and (5) with regard to the simulated contracting of workers through third parties, the labour inspectorate imposed an administrative fine on the enterprise; the enterprise lodged a legal appeal against the fine and the case is still awaiting a ruling.
4. 679. Whilst it notes the outcomes of the administrative inspections and the two first instance rulings in favour of the enterprise, the Committee requests the Government to send the text of the first instance rulings or appeal rulings handed down in connection with the various allegations made by the complainants on 14 October 2004, so that it may pronounce itself in full knowledge of the facts.
5. 680. The Committee further notes the Government’s statement with regard to the additional information sent by the Federation of Trade Unions of Chilean Television Channels and Production Companies (FETRA-TV) on 30 March 2005. In this respect, the Committee notes that according to the Government, the Trade Union of the Television Corporation of the Pontifical Catholic University of Chile (Channel 13 TV Union) lodged a judicial request on these questions in 2005 and the Ministry of Labour presented to the judicial authority the corresponding investigation report; according to the Government the allegations of FETRA-TV are, in general, the same as those made in the mentioned judicial request. Nevertheless, the Committee requests the Government to send additional observations on the allegations concerning discrimination against the general secretary of the union committed by assigning certain operations for which he had been responsible to a contracting enterprise; pressure from the corporation for workers to abandon collective bargaining, along with economic incentives for those who were not part of the bargaining group prejudicial to those who were members; failure to comply with the provisions of the collective contract; the recent dismissal of three union members; impossibility for the union to recruit members contracted through external enterprises; and the signing by workers of individual contracts imposed by the corporation which exclude them from collective bargaining. The Committee requests the Government to communicate the judgement pronounced on the recent judicial request lodged on these issues.