Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 381, Mars 2017

1. 220. The complaint is contained in a communication dated 11 December 2015 presented by the Confederation of Copper Workers (CTC). The CTC submitted additional information in a communication of 6 June 2016.
2. 221. The Government sent its observations in a communication of 27 January 2017.
3. 222. 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).

B. The Government’s reply

1. 236. In its communication dated 27 January 2017, the Government sent its own observations and those of the enterprise. First, and with a view to explaining the situation in which the copper industry finds itself, the Government states that the fall in the price of copper has heavily affected this industry over recent years, generating job losses, the discontinuance of projects and investments, downtime and the early termination of contracts, especially in the mining support service sector, and that this has led to a steady, significant decrease in activity over recent years.
2. 237. Secondly, the Government refers to the legal framework governing collective bargaining in Chile and emphasizes that, for the last four decades, the only binding and obligatory collective bargaining recognized in Chilean legislation has been enterprise-level bargaining. The current Labour Code retains the provisions of Act No. 19069. Collective bargaining affecting more than one enterprise requires the agreement of the parties (section 303(2)). For employers, bargaining with the union is voluntary or optional and they have two options: first, if the employer decides not to bargain, the workers of the enterprise who are members of the inter-enterprise union may submit draft collective agreements in accordance with the general rules (section 334 bis (A)); second, if the employer agrees to bargain collectively, the joint negotiating commission must be involved (section 334 bis (B)). The Government emphasizes that collective bargaining at the supra-enterprise level is essentially voluntary both under the abovementioned current legislation and under Act No. 20940 which will enter into force on 1 April 2017.
3. 238. The Government states that, in light of the above, the workers represented by the CTC have the right to collective bargaining at the enterprise level, whereas collective bargaining at the supra-enterprise level is voluntary. Thus, on 1 August 2007, in very encouraging conditions for the copper industry, the framework agreement was signed between the enterprise, the contracting enterprises and the CTC, following a dispute affecting industrial relations in the sector and, in particular, the operations of the state-owned copper enterprise. As a follow-up to this agreement, in 2009, 2011 and 2013, complementary agreements were concluded between the CTC and the Professional Association of Mining Enterprises and Allied Industries (AGEMA) in which the benefits agreed in the 2007 framework agreement were enhanced. The enterprise played a facilitator and guarantor role in the signing of these complementary agreements. Act No. 20123 on subcontracting and personnel supply specified who could participate in these negotiations. Thus, it was agreed that additional obligations for contracting enterprises should be included in the terms of service provision tender and that inspections in contracting and subcontracting enterprises should be improved by granting greater powers than those required by law. The enterprise participated in the discussions between AGEMA and the CTC only as facilitator and guarantor of the agreements, although, when all is said and done, these processes did not amount to binding branch collective bargaining within the meaning of the provisions of the Labour Code, which means that there is no specific or fixed time frame for their completion. This is not therefore a collective bargaining process at the supra-enterprise level, the obligatory nature of which would extend beyond material conditions and what has been agreed between the parties. Hence these agreements cannot carry the same effects as a statutory collective agreement or contract, notwithstanding commitments to revise and improve the agreement, which in any case require the good will of the parties.
4. 239. The Government states that the dispute among AGEMA, the CTC and the enterprise began in July 2015 when the CTC sent the state-owned copper enterprise, a request to enter into direct bargaining, thereby diverging from the parties’ previous practice and the text of the agreements signed in 2007, 2009, 2011 and 2013, in which the bargaining process was carried out between the CTC and the contracting and subcontracting enterprises. In this context, the enterprise, in a letter dated 13 July 2015, informed the CTC that its request should be dealt with and settled directly by the contract workers, their representative trade unions and their respective employer enterprises. The CTC subsequently began to put pressure on the state enterprise by calling a work stoppage which culminated in the blocking of the public road linking the Diego de Almagro area with the El Salvador division camp and in the occupation of those facilities, thus preventing access and jeopardizing industrial safety.
5. 240. The Government states that it was against this backdrop that the Chilean paramilitary police force carried out the operation which began on the night of 23 July and resulted in the death of the worker, Mr Nelson Quichillao López, in the early hours of the next day. It also states that in order to shed light on the events surrounding his death two investigations are under way which, to date, have not been closed or finalized: one is an internal military police investigation and the other, in which the CTC is a complainant, is being led by the Office of the Public Prosecutor. With a view to further clarifying the facts, it should be noted that the National Human Rights Institute also filed a criminal complaint against those responsible for the death of the worker, Mr Quichillao López.
6. 241. With regard to the complaints concerning the anti-union practices of the Directorate of Labour, the Government emphasizes that this body is deeply committed to freedom of association and that its actions in defence of its principles comply with legal and constitutional standards: (i) in respect of the dismissals which reportedly affected workers from various contracting enterprises, it has not been possible to gather all the available information on the complaints received and the status of judicial and administrative proceedings (with regard to the allegations of mass dismissals in the health-care contracting enterprise, the enterprise states that the decisions taken by the enterprise are not within its corporate control and that, in any case, the dismissals were carried out as part of a restructuring process. The state copper enterprise adds that, at the time of the dismissals, 95 per cent of the workers were trade union members and were registered with the primary trade union affiliated to the CTC (to date these figures still stand)); (ii) regarding the move to reprimand the Gardilcic Andina trade union, 20 per cent of the associates requested the Labour Inspectorate to provide a certifying officer to take part in the process of reprimanding the union leadership. After a public notice of a meeting had been posted, a decision to reprimand the union leadership was adopted by a vote on 11 November 2015 (in which 431 men and 3 women participated). The Government explains that the Labour Inspectorate does not interfere in the validation of the grounds of a reprimand and that, in the event of false accusations, it is the responsibility of the organization itself to annul the reprimand or adopt measures to resolve any conflict arising within the organization. All requests to annul a leadership reprimand are dealt with by the labour courts; (iii) the illegal replacement of striking workers participating in the collective bargaining process of the integral services was recorded by the Chañara Labour Inspectorate and reported to the Directorate of Labour, which, in turn, submitted a complaint of anti-union practices to the Labour Court, which resulted in an agreement approved by the court on 9 March 2016 and the closure of the case on 19 May 2016; and (iv) as for the allegation that the maintenance service contractor in the El Teniente division refused to engage in collective bargaining, it did so under section 322 of the existing Labour Code, that is to say it raised an objection relating to time limits and a lack of opportunity to enter into bargaining, which was accepted by the Rancagua Labour Inspectorate.
7. 242. With regard to the possible effects of the CTC’s criticism of the labour reform, the Government understands that the organization has a legitimate right to disagree with the Government’s views when the latter introduces legislation on collective bargaining and to promote a complete revision of Chapter IV of the Labour Code.
8. 243. The enterprise denies the allegations that it used direct or indirect psychological pressure or physical force on workers during the bargaining process, and submits that the general accusations levelled against it are not based on specific facts, but on assertions of interference by the State in this regard. The enterprise also denies having committed acts of union interference, reiterating that these, too, are unsubstantiated accusations. With regard to the mass dismissals of the contracting enterprises’ workers who were involved in the strike, the enterprise, as the principal in the subcontracting system, states that it does not intervene in the dismissals of the contracting enterprises’ employees. Its sole interaction with the contracting enterprises is limited to establishing, in advance, the tendering terms which are ultimately transferred to the resulting civil-law contract, which are also signed by the contracting enterprises, as any further involvement in the management and administration of each enterprise’s human resources would be inappropriate. The enterprise states that the complaint does not contain any factual evidence of collaboration to undermine trade union activity and that, to the contrary, it has acted as a mediator or facilitator of agreements and intervened only when it was possible to promote agreement between the parties which might be linked to matters within its remit as principal, without interfering in trade union or worker organization matters in the processes mentioned above.
9. 244. With respect to the public monument in memory of Mr Nelson Quichillao López, the Government indicates that the situation which arose during the process to authorize its construction stemmed from the actions or decisions of either the Council for National Monuments or the Ministry of National Assets, in which the enterprise played no part. Although the authorization and putting in place of the memorial undermined the legitimate exercise of a right in rem associated with the mining easement owned exclusively by the enterprise, the monument has been built and set up in that location without waiting for the orders which revoked the authorization.

C. The Committee’s conclusions

1. 245. The Committee notes that, in this case, the Confederation of Copper Workers (CTC), which comprises workers in a subordinate and dependent relationship with contracting enterprises of the enterprise, denounces the excessive use of police force during a lawful strike held between 21 July and 11 August 2015, that resulted in the death of a worker, and it also alleges that during negotiations to improve and expand the framework agreement concluded in 2007 between the CTC, the enterprise and the contracting enterprises, various anti-union practices occurred in several of these enterprises.
2. 246. The Committee notes that, according to the complainant: (i) on 1 August 2007, a framework agreement was concluded between the CTC, the enterprise and the contracting enterprises (according to the complainant, the enterprise, dominates the contracting enterprises); (ii) this framework is the only supra-enterprise collective instrument that embodies rights and obligations relating to the workers’ remuneration and social protection;; (iii) although the framework agreement does not specify a renewal date, it was extended through negotiations in 2009, 2011 and 2013, that is to say within the minimum periods established in the national legislation for the renewal of collective instruments, meaning that negotiations should have been conducted in 2015; and (iv) on 6 July 2015, the CTC submitted an application for the enforcement, improvement and extension of the agreement and, faced with the reluctance of the enterprise and its contracting enterprises to start the negotiation process (they argued that the negotiations should be held in 2016, not 2015, and that the enterprise was facing a difficult economic situation due to internal production conditions and the low price of copper), the CTC launched a lawful strike on 21 July 2015.
3. 247. In this regard, the Committee notes the Government’s contention that: (i) the drop in the price of copper has significantly affected the copper industry in recent years, leading to job losses and the discontinuance of projects and investments; (ii) Chilean legislation recognizes only one binding and compulsory level of negotiation: the enterprise level (supra-enterprise negotiation is essentially voluntary); (iii) while the framework agreement between the enterprise, the contracting enterprises and the CTC was concluded on 1 August 2007, the complementary agreements negotiated in 2009, 2011 and 2013 were concluded between the CTC and the contracting enterprises which form the Professional Association of Mining Enterprises and Related Industries (AGEMA). The enterprise participated in these negotiations only as a facilitator and guarantor; and (iv) on 6 July 2015, the CTC broached the possibility of direct negotiation with the enterprise, thus breaking with the parties’ previous practice. On being faced with this situation, the enterprise responded that this request should be settled directly between the contract workers, their representative trade union organizations and the respective enterprises employing them, at which point the CTC began to put pressure on the state enterprise, calling a stoppage that would result in the occupation of facilities and the blocking of a public road.
4. 248. In relation to the alleged excessive use of police force during a lawful strike held between 21 July and 11 August 2015, that resulted in the death of a worker, the Committee notes that, according to the CTC, the Government and the police report annexed to the complaint, on 23 July, the Chilean paramilitary police force carried out an operation in the El Salvador division, which resulted in the death of the worker Mr Nelson Quichillao López, who died of a gunshot wound in the early hours of the next day. The Committee notes that according to the CTC and the Government, two investigations are being conducted in order to clarify the circumstances surrounding his death: one by the paramilitary police force (which, according to the complainant, lacks credibility, legitimacy and impartiality) and another by the Public Prosecutor’s Office, in which the CTC is the complainant. The Committee notes that to date, both investigations are ongoing. It also notes the Government’s statement that, with a view to further clarifying the facts, the National Human Rights Institute has filed a criminal complaint against those responsible for the death of the worker Nelson Quichillao López. The Committee recalls that in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities (see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 49). The Committee deeply regrets the death of the worker Nelson Quichillao López and urges the Government to keep it duly informed of the findings of the investigations which are under way and to ensure that the perpetrators of this crime are brought to justice.
5. 249. The Committee notes the complainant organization’s submission that, although a protocol for the establishment of a bargaining committee was signed by the CTC and the contracting enterprises, in the presence of the enterprise, on 11 August 2015, the enterprise and the contracting enterprises have since refused to hold a dialogue to resolve the dispute and have engaged in a series of anti-union practices coordinated by and in complicity with various state bodies. In this regard, the Committee notes the Government’s emphasis that the Directorate of Labour is deeply committed to freedom of association and that its acts in defence of its principles comply with legal and constitutional provisions. As to the allegation that the integral services enterprise replaced striking workers, the Committee notes the Government’s information that this was reported to the Directorate of Labour, which in turn filed a complaint for anti-union practices with the Court of Labour. This resulted in an agreement dated 9 March 2016, which was approved by the court in a judgment closing the case dated 19 May 2016. Moreover, with regard to the allegation that the maintenance services enterprise in the El Teniente division refused to engage in collective bargaining, the Committee notes the Government’s statement that it did so in accordance with section 322 of the Labour Code, that is to say it raised an objection relating to time limits and a lack of opportunity to enter into bargaining, which was accepted by the Labour Inspectorate of Rancagua.
6. 250. With regard to the other alleged anti-union practices contained in this complaint, the Committee notes that, according to the CTC, complaints have been filed with the Directorate of Labour, or judicial proceedings have been initiated, but to date their outcome remains unknown. In this regard, and in relation to the alleged anti-union dismissals in particular, the Committee notes the Government’s statement that it has been unable to collect all the available information on the complaints received and the status of the judicial proceedings.
7. 251. The Committee therefore requests the Government to keep it informed of the outcome of these procedures, in particular with regard to: (i) the lawsuit filed in relation to the dismissal in February 2016 of 33 workers from a health-care contracting enterprise in the El Salvador division (32 of whom were union members); (ii) the status of the complaint filed with the Directorate of Labour in relation to the reprimand of the officers of the Gardilcic Andina Union; (iii) the decision in which the Chañaral Provincial Labour Inspectorate and the Atacama Regional Directorate of Labour declared inadmissible the complaint arising from the deductions applied by a service provider in the enterprise’s El Salvador division to workers who participated in the strike; and (iv) the status of the complaint filed on 14 October 2015 with the Directorate of Labour in relation to anti-union practices in various contracting enterprises. The Committee also requests the Government to provide information on the arrest of a Calama trade union leader who was arrested for making death threats against an enterprise manager, according to the CTC after he had reported the illegal activities of a transport company, a contractor undertaking work for the enterprise.
8. 252. On the other hand, in relation to the allegations of dismissals in the following enterprises: (i) two health-care enterprises; (ii) the integral services enterprise (the Committee notes that, according to the enterprise, the dismissals were the result of the latter’s restructuring); and (iii) the enterprise providing services in the El Salvador division which allegedly dismissed workers who were on the same shift as the worker Nelson Quichillao López, and who reportedly participated in the reconstruction of the crime during the inquiry conducted by the Public Prosecutor’s Office, the Committee observes that, although the complainant provides the name of the enterprises in which anti-union dismissals allegedly took place, the Committee does not have specific information on the number or identity of the workers who were dismissed in each enterprise, on whether they were trade union members or on whether they participated in trade union activities. The Committee invites the complainant to provide the Government with further information on the dismissals and their possible anti-union motivation and it requests the Government to keep it informed of the status of any complaints filed in this connection with the Directorate of Labour and on any other administrative or judicial proceedings that have been initiated in this regard.
9. 253. The Committee notes that the allegations considered in this case relate to events following the deadlock reached in negotiations between the CTC, the enterprise and the contracting enterprises concerning the revision of the framework agreement of 2007. The Committee also notes that, although a negotiating committee was set up on 11 August 2015, collective bargaining between the parties was fruitless. The Committee invites the Government to promote voluntary dialogue and collective bargaining between the parties concerned with a view to achieving harmonious working relations.