Rapport définitif - Rapport No. 388, Mars 2019

1. 230. The complaint is contained in a communication from the National Trade Union Federation of List A Supervisors and Professionals of CODELCO (FESUC) dated 17 March 2016. FESUC sent additional information in a communication dated 15 November 2016.
2. 231. The Government sent its observations in a communication dated 15 May 2017.
3. 232. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 233. In its communication of 17 March 2016, the National Trade Union Federation of List A Supervisors and Professionals of CODELCO (FESUC) reports that it has affiliated six unions and some 1,800 professionals working for the enterprise CODELCO (hereinafter “the enterprise”). The complainant organization alleges that the enterprise discourages supervisors from union membership; that the enterprise’s Corporate Governance Act discriminates against the complainant in the systems for representation on the enterprise’s board; that the functioning of the complainant’s trade unions has been hindered by the dismissal of hundreds of members; that the right to strike was violated through an eviction decree issued by the provincial governor; and that several union leaders were called in for questioning by the police, even though the strike was peaceful.
2. 234. The complainant adds some allegations that were already examined by the Committee in a complaint presented on 14 June 2012 (Case No. 2963) and emphasizes that, not only have the recommendations of the Committee in its report of March 2014 not been taken into account in any way by the Government, but that on 29 December 2014 the Government presented a draft labour reform that runs counter to those recommendations. The complainant refers, in particular, to the following allegations:
   • – the allegation that, by invoking the provisions of article 305 of the Labour Code, workers with temporary contracts for work or services, as well as those serving as directors or superintendents in some establishments, have been excluded from the collective bargaining process;
   • – the allegation that, applying article 346 of the Labour Code, which requires non-union workers who are the recipients of benefits under a collective instrument to pay 75 per cent of the regular monthly union dues, discourages individuals from exercising their right to organize; and
   • – the allegation that the enterprise used articles 369 et seq. of the Labour Code to outlaw a work stoppage called in protest against the policy that the state enterprise was implementing, with a view to pushing through its transformation plans, because they were being developed outside the collective bargaining process.
3. 235. The complainant states that there has always been a strong belief within the enterprise that supervisors have fewer trade union rights than operators, who are List B workers and belong to trade unions affiliated to the Federation of Copper Workers (FTC). The complainant alleges that the enterprise’s management subscribed to the doctrine that supervisors must not join a union since they are in positions of trust, a situation that is clearly reflected in the union membership percentage of both categories, given that List B workers have a membership rate of 98 per cent, and List A supervisors a rate of 52.1 per cent. The complainant also alleges that it does not have the same level of influence as the FTC in the appointment of representatives to the enterprise’s board. According to the complainant, the enterprise’s Corporate Governance Act No. 20392 of 2009, which regulates the composition of the board, discriminates between FESUC and the FTC. While List B workers standing for the board are selected solely by the FTC, in the case of List A supervisors and professionals, FESUC must submit a proposal jointly with the National Association of Supervisors in the Copper Industry (ANSCO) nominating a representative from both organizations to the board.
4. 236. The complainant also alleges that the enterprise has hindered the functioning of the trade union through dismissals and threats of dismissals. It alleges, specifically, that throughout 2015 the enterprise’s management publicly stated its concern at the high production costs and low price of copper, and indicated that dismissals of the enterprise’s List A supervisors were inevitable. On 29 October 2015, the Vice-President for Human Resources stated that the enterprise had to terminate the services of 350 supervisors and, subsequent to this mass dismissal (which represents 8 per cent of all supervisors, most of whom were FESUC members), indicated that there would be further dismissals given the copper price crisis. It was also stated that the enterprise could limit or reduce the use of redundancy packages, which is the system generally used to terminate the services of its workers and which sets out a more generous series of employment benefits and compensation than those provided for in law in the case of dismissals owing to the need to adjust staff numbers to respond to the enterprise’s requirements. At the same time, on 11 December 2015, the Vice-President for Human Resources stated in an interview that List B workers affiliated to the FTC were not going to be dismissed, and even referred to the need to guarantee the employability of those workers.
5. 237. The complainant also alleges the anti-union dismissal of 31 members of the List A Supervisors Trade Union of Andina (affiliated to FESUC) on 29 October 2015. The dismissals took place one month and 17 days prior to the full renewal of the trade union’s board, thus determining the results of the election and the composition of the board. While at first the dismissals had been justified on the grounds of having to adjust staff numbers to respond to the enterprise’s requirements, the grounds for termination were ultimately changed and the workers accepted the so-called “redundancy packages”. These packages provided for the workers who voluntarily left the enterprise and fulfilled certain requirements related to age and period of service to receive compensation for years of service for each year worked for the enterprise, as well as an allowance and additional support linked to social security and health.
6. 238. Lastly, the complainant alleges that the right to strike was violated through a decree issued by the provincial governor of El Loa, ordering the eviction of striking workers from the premises they were peacefully occupying. It is alleged that, on 10 October 2015, the special forces unit of the Chilean police appeared at the premises of the Radomiro Tomic division with a decree issued by the provincial governor, which ordered the restitution of state property. The complainant alleges that, when threatened by the police, the strikers left the premises. It also alleges that, on 8 January 2016, the police filed a police report regarding the strike against the ten trade union leaders, all of whom were members of FESUC, and made them undergo a police identity check, even though they had not committed any crime as they had participated in a peaceful strike. This situation seriously affected the public image of the trade union leaders and caused psychological damage.

B. The Government’s reply

1. 239. In a communication dated 15 May 2017, the Government sent its observations, as well as those of the enterprise. The Government indicates that this is an autonomous state enterprise, primarily engaged in the exploration, development, exploitation, processing and marketing of copper mineral resources and by-products, through seven divisions. The enterprise has 18,030 workers in total, 3,858 of whom are in the category of supervisor. Around 90 per cent of workers are union members, and 72.1 per cent of supervisors are union members, within nine unions affiliated to FESUC and ANSCO. List B operators are grouped into 24 unions, all affiliated to the FTC.
2. 240. The Government emphasizes that it has implemented the Committee’s recommendations with respect to Case No. 2963 through Act No. 20940, which modernizes the labour relations system and entered into force on 1 April 2017. The Government indicates that, under this Act, chapter IV of the Labour Code was reformed in line with the Committee’s recommendations concerning Case No. 2963 and the comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR). The Government highlights that in its latest observations published in 2017 concerning the application of Conventions Nos 87 and 98, the CEACR noted with satisfaction the derogation of articles 305, 346 and 369 of the former text of chapter IV of the Labour Code, which were the subject of Case No. 2963.
3. 241. The enterprise denies carrying out acts of arbitrary discrimination against FESUC, showing favouritism towards the FTC; on the contrary, it has always respected its trade union organizations and has maintained cordial labour relations with both federations. The enterprise indicates that it has signed a number of agreements with both the FTC and FESUC and that it does not distinguish between trade union organizations. It states that it fully respects the exercise of freedom of association in its various forms for all workers, operators and supervisors alike, who are free to join the trade union of their choice. This is demonstrated by the high percentage of unionized workers, which is around 90 per cent of all its workers. If the rate of union membership among supervisors is not similar to that of List B workers (operators), this is due solely and exclusively to the personal decision of the workers who carry out those functions. There is no interference by the enterprise in that decision-making process.
4. 242. The enterprise states that it has signed agreements with the complainant on a number of occasions, which is why it cannot understand the claim of discriminatory treatment between FESUC and the FTC. The courts also reached this same conclusion in two of the four judicial proceedings initiated by FESUC against the enterprise in which very similar allegations to those in this case were made. In two of the proceedings, the claim was rejected, dismissing the existence of discrimination between trade unions, and the other two proceedings are still ongoing.
5. 243. With respect to the allegation that FESUC does not have the same level of influence as the FTC in the appointment of representatives to the enterprise’s board, the enterprise indicates that, under its Corporate Governance Act No. 20392, one of the two worker representatives on the board is appointed from a shortlist presented by the FTC (as the only organization representing List B workers) and one member is appointed from a shortlist put forward by ANSCO together with FESUC (both have to agree because both represent the enterprise’s supervisors).
6. 244. With regard to the alleged threats of dismissal, the enterprise states that, while its senior management publicly expressed the need to adjust its costs and number of supervisors as part of measures to respond to the period of economic difficulty it is facing, those statements were made against the backdrop of a depreciation in the price of copper, which is public knowledge and in no way represents anti-union conduct. In the circumstances, the mining companies have had to reduce their costs to optimize their operations. The enterprise’s divisions agreed, in their collective instruments, on the so-called “redundancy packages”, which include a series of benefits well above the level of those that workers would be legally entitled to receive on termination of service, as an incentive for them to leave.
7. 245. The enterprise states that there were no threats of job losses because of worker participation in trade unions or in activities organized by them, and that the reasons for adjusting staff numbers are related to market changes and to the difficult economic situation the enterprise is facing, and thus in no way constitute threats of job losses associated with the exercise of freedom of association by List A workers. The termination of 350 unionized workers at the national level can in no way be qualified as arbitrary and was never intended to affect the freedom of association of FESUC or the trade unions affiliated to it. In that context, in October 2015, each division began reducing its numbers of supervisors, which in some cases involved supervisor redundancies or, in others, dismissals owing to the enterprise’s need to adjust staff numbers to respond to requirements. The enterprise highlights that the numbers of workers carrying out supervisor tasks at the national level actually rose by 49 per cent from 2010 to date, increasing from 2,620 to 3,907. On the other hand, the total number of workers carrying out operator tasks fell by 9 per cent in the same period, as at the beginning of 2010 the total number of operators was 15,306 and by the end of 2015 it was 13,930. This situation, in addition to the fact that greater numbers of List B workers agreed to the redundancy packages, justified the fact that the reduction in staff numbers affected the supervisor category and not the operator category. Furthermore, the cost-reduction measures (with respect to reducing worker numbers) also affected another category in the enterprise, namely List E, which includes the enterprise’s managers, who were affected by management restructuring in some of the divisions. Therefore, these measures were not centred solely on workers in the supervisor category.
8. 246. The enterprise states that it did not engage in anti-union practices aimed at hindering the functioning of FESUC by changing its quorum at the time of the dismissal of 31 supervisors in October 2015. It reports that the Andina division did not know which workers were going to stand as candidates in the election and that ultimately the termination of the employment contracts of 31 workers affiliated to the List A Supervisors Trade Union of Andina was made through voluntary redundancies. The workers opted for the redundancy package provided for in the collective agreement in force and agreed to change the grounds for termination to voluntary redundancy. The redundancy package was the workers’ preferred option because it gave them access to greater benefits than the option of termination of services owing to the need to adjust staff numbers to the enterprise’s requirements. Consequently, in accepting the redundancy package, the workers received, thanks to compensation calculated on years of service, sums of money greater than those agreed. The enterprise states that the workers, individually and after consultation with their trade union representatives, agreed to change the grounds for termination to voluntary redundancy. The enterprise also states that there has always been a high proportion of List A workers of the Andina division affiliated to trade union organizations of FESUC, which stands at 85 per cent. This is why 31 of these workers were affected.
9. 247. With respect to the allegation of police intervention in the strike, the Government and the enterprise state that the eviction decree was issued by the provincial governor of El Loa to stop the trucks blocking access to the Radomiro Tomic division as part of a legal strike held by the List A Supervisors Trade Union of that workplace, in the context of a collective bargaining process at the end of 2015. The enterprise indicates that the strikers prevented non-striking workers from entering the division, including workers from contracting and subcontracting enterprises. While the enterprise recognizes the right to strike, any strikes held must respect the rights of other workers of the enterprise and/or of contracting and subcontracting enterprises who, as they were not involved in the collective bargaining in question, had to provide the services for which they had been hired.

C. The Committee’s conclusions

1. 248. The Committee observes that, in the present case, the complainant alleges that a national copper enterprise discourages supervisors from union membership; that the law discriminates against the complainant in the systems for representation on the enterprise’s board; that the functioning of the complainant’s trade unions has been hindered by the dismissal of hundreds of members; that the right to strike was violated through an eviction decree issued by the provincial governor; and that several trade union leaders were called in for questioning by the police in relation to their participation in a peaceful strike.
2. 249. The Committee also observes that, in addition to those allegations, in the present complaint the complainant recalls allegations that were examined by the Committee in Case No. 2963 presented by the same complainant organization in 2012 [see 371st report of the Committee of March 2014, paras 222–238]. The Committee notes that, according to the complainant, the Government has not implemented the recommendations made by the Committee in that case, which referred to the need to take legislative measures in relation to articles 305, 346 and 369 of the Labour Code. In this respect, the Committee notes the Government’s statement that, on 1 April 2017, that is to say after the presentation of the complaint, Act No. 20940 entered into force, modernizing the labour relations system and reforming chapter IV of the Labour Code, and implementing the recommendations made by the Committee in Case No. 2963, derogating, inter alia, articles 305, 346 and 369 of the former text of chapter IV of the Labour Code. The Committee observes that, according to the Government, in its latest observations published in 2017 in relation to the application of Conventions Nos 87 and 98, the CEACR noted with satisfaction the derogations of the provisions mentioned. The Committee welcomes the legislative changes derogating the provisions in line with its recommendations in Case No. 2963.
3. 250. With regard to the allegation that the enterprise discourages supervisors from union membership since they are in positions of trust (the complainant indicates that while List B workers (operators) have a union membership rate of 98 per cent, List A supervisors have a rate of 52.1 per cent), the Committee notes the enterprise’s statement that: (i) it respects the exercise of freedom of association of all its workers, operators and supervisors alike, who are free to join a trade union organization of their choice, which is demonstrated by the high percentage of unionized workers in the enterprise of around 90 per cent of all its workers; (ii) it does not distinguish between trade union organizations, and FESUC (supervisors) and the FTC (operators) have participated in the various collective bargaining opportunities that have arisen over time; (iii) if the rate of union membership among supervisors is not similar to that of operators, this is due to a personal decision of the workers themselves, and there is no interference by the enterprise in that decision-making process; (iv) there are two organizations in the enterprise that affiliate supervisors (FESUC and ANSCO), which jointly represent a trade union membership rate of 72.1; and (v) the enterprise has signed agreements with the complainant organization on a number of occasions, which is why it cannot understand the claim of discriminatory treatment between FESUC and the FTC.
4. 251. The Committee also notes that, according to the Government, the complainant has brought various judicial proceedings against the enterprise in which very similar allegations to those in this case were made: two of the four proceedings are still ongoing and in the other two a ruling was issued dismissing the existence of discrimination between the trade union organizations and rejecting the claim of anti-union practices. While the Committee notes that the rate of union membership of supervisors is lower than that of operators, in the present complaint the complainant has not provided information on specific acts that the enterprise reportedly carried out that had a direct impact on membership of or withdrawal from a trade union by its members, and neither does it allege that it was not able to negotiate agreements with the enterprise. Noting that, to date, two of the proceedings are still ongoing, the Committee trusts that, if cases of anti-union discrimination are found, appropriate steps will be taken to remedy them.
5. 252. With regard to the allegation that FESUC does not have the same level of influence as the FTC in the appointment of representatives to the enterprise’s board, the Committee notes the enterprise’s statement that, under its Corporate Governance Act No. 20392, one of the two worker representatives of the board is appointed from a shortlist presented by the FTC (as the only organization representing List B workers) and one member is appointed from a shortlist put forward by ANSCO together with FESUC (the Government indicates that both have to agree because both represent the enterprise’s supervisors). In this respect, the Committee observes that the complainant has not provided evidence to suggest anti-union discrimination or animus against FESUC and further observes that, as is public knowledge, on 30 December 2016, that is to say after the presentation of the complaint, FESUC and ANSCO reached agreement on a shortlist of nominations for their representative to the board (a post that had been vacant for a year and a half).
6. 253. The Committee notes that the complainant also alleges that the enterprise has hindered the functioning of the trade union through dismissals and threats of dismissals: (i) the enterprise’s senior management made public statements to the effect that the copper price crisis made inevitable the dismissal of the enterprise’s List A supervisors at the national level (and thus not List B operators), which led to the dismissal of 350 supervisors, that is to say 8 per cent of the total number of supervisors, most of whom were members of FESUC, and all of whom were dismissed on the same day, affecting FESUC’s image, resources and bargaining capacity; and (ii) the enterprise dismissed 31 supervisors affiliated to the List A Supervisors Trade Union of Andina (affiliated to FESUC) one month and 17 days prior to the full renewal of the trade union board.
7. 254. In this respect, the Committee notes the enterprise’s statement that: (i) the difficult economic situation the copper mining market is facing is public knowledge and the enterprise is aware of this situation; indeed, the enterprise’s senior management had alluded to this in their statements; (ii) in that context, in October 2015, each of the enterprise’s divisions began reducing worker numbers, which led to supervisor and operator redundancies in some cases or, in other cases, to dismissals owing to the need to adjust staff numbers to respond to the enterprise’s requirements; (iii) the aim of terminating the services of 350 unionized supervisors at the national level had never been to affect freedom of association; in fact, the number of supervisors at the national level had risen by 49 per cent from 2010 to date, increasing from 2,620 to 3,907; and, on the other hand, the total number of operators had fallen by 9 per cent in the same period, as at the beginning of 2010 their total number was 15,306 and by the end of 2015 it was 13,930; (iv) greater numbers of List B workers agreed to the redundancy packages, which justified the fact that the reduction in staff numbers affected the supervisor category and not the operator category; and (v) the cost-reduction measures also affected another category in the enterprise, namely List E, which consisted of the enterprise’s managers, who were affected by management restructuring in some of the divisions. The enterprise also states that 31 supervisors from the Andina division accepted the redundancy package, as it gave them access to greater benefits than the option of termination of services linked to the need to adjust staff numbers to respond to the enterprise’s requirements. The enterprise also states that it was not aware that the termination of the workers was carried out one month and 17 days prior to the full renewal of the trade union board. It emphasizes that, in any case, there has always been a high proportion of List A workers of the Andina division affiliated to FESUC trade union organizations, which stands at 85 per cent, and this is why 31 of these workers were affected.
8. 255. The Committee notes that, while the complainant alleges that the dismissal of 350 supervisors, that is to say 8 per cent of the total number of supervisors, most of whom were members of FESUC and all of whom were dismissed on the same day, affected FESUC’s image, resources and bargaining capacity, the complainant has not provided any information that would lead to the conclusion that the dismissals were due to union membership or to carrying out union activities, or in order to hinder the functioning of FESUC. The Committee notes, however, that while both the complainant and the Government refer to the figure of 350 supervisors, the Committee does not have other data (the total number of dismissals in the enterprise at the national level – among both supervisors and operators – as well as the total number of workers who accepted the termination package). Therefore, unless the complainant can provide specific information on the anti-union nature of the dismissals, the Committee will not pursue its examination of this allegation any further.
9. 256. With regard to the allegation that the dismissal of 31 supervisors affiliated to the List A Supervisors Trade Union of Andina, one month and 17 days before the election of its new board, had an impact on the composition of the new board, the Committee notes that the complainant has not provided any information that would lead to the conclusion that there had been interference in the trade union or in its elections considering, in particular, that the rate of union membership of List A workers of the Andina division stands at 85 per cent, and it was therefore highly likely that the terminated workers were members of the trade union. In addition, the Committee notes that, according to the complainant and the Government, 31 workers ultimately accepted the redundancy package and that this gave them access to greater benefits.
10. 257. Lastly, the Committee notes the allegations that the right to strike was violated through a decree issued by the governor, who ordered the eviction of workers from the premises they were peacefully occupying and that, after the strike, several trade union leaders were called in for questioning by the police, which seriously affected their public image. In this respect, the Committee observes that, according to information from the Government and the enterprise, the eviction decree was issued by the governor to stop the trucks blocking access to the Radomiro Tomic division, preventing non-striking workers from entering the building, including workers from contracting and subcontracting enterprises. While it notes that the strike in question was peaceful (as stated in the police report included by the complainant), the Committee recalls that the exercise of the right to strike should respect the freedom to work of non-strikers, as established by the legislation, as well as the right of the management to enter the premises of the enterprise [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 940).