Rapport intérimaire - Rapport No. 256, Juin 1988

1. 255. The Committee has examined this case on various occasions, most recently at its February 1988 meeting, when it presented an interim report to the Governing Body. (See the 254th Report, paragraphs 288-350, approved by the Governing Body at its 239th Session (February-March 1988).)
2. 256. Subsequently, the ILO received the following communications from the complainants: COPESA (Consorcio Periodístico de Chile, SA) Workers' Trade Union No. 1, of 22 January 1988; National Confederation of Federations and Trade Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH), of 5 April and 4 May 1988; International Confederation of Free Trade Unions (ICFTU), of 13 and 26 April 1988; Workers' Democratic Confederation, of 13 April 1988 and the National Confederation of Federations and Trade Unions of Chilean Textile and Allied Workers (CONTEXTIL), of 26 April 1988. The Government transmitted its observations in communications of 8 March, 7 April and 2 May 1988.
3. 257. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 258. At its 239th Session in February-March 1988, the Governing Body approved the Committee's recommendations relating to the numerous complaints of detention of trade unionists (specifically Manuel Bustos, Arturo Martínez and Moisés Labraña) and requested the Government to keep it informed of developments as regards their legal position; to the refusal to allow several trade unionists (Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro) to enter the country, and requested the Government to keep it informed of the situation of Luis Meneses Aranda, particularly as regards the restoration of his Chilean nationality; and to the raid on the headquarters of the Federation of Self-Employed and Part-Time Workers' Trade Unions and the home of trade union leader Alejandro Olivares Pérez.

B. New allegations

1. 259. In its communication of 22 January 1988 the COPESA (Consorcio Periodístico de Chile, SA) Workers' Trade Union No. 1 reports that on 26 May 1987 the Consorcio Periodístico de Chile, SA entered into a collective labour agreement with the COPESA Workers' Trade Union No. 1. The agreement was for a period of two years (from 1 May 1987 until 30 April 1989), and provided that the workers' remuneration in force until 31 March 1988 would be adjusted from 1 April 1988 by a percentage equal to 95 per cent of the change in the consumer price index (a rise in the cost of living) for October, November and December 1987 and January, February and March 1988.
2. 260. The undertaking reached an agreement on the rescheduling of debts and loans at preferential rates of interest with the creditor banks, headed by the Banco del Estado de Chile (a State bank) which signed an agreement with the undertaking for the rescheduling and payment of its debts, as is shown by the officially registered document executed on 5 August 1987. In spite of this agreement COPESA demanded that the members of the trade union forgo the wage increase payable as from 1 April 1988, on penalty of dismissal. The complainant states that the undertaking's arbitrary demand that the workers withdraw their claim to the remuneration to which they are entitled on the grounds that it is not subject to compensation for inflation (which in 1987 was at the rate of 21.5 per cent) infringes statutory provisions contained in the Labour Code and in international agreements. The workers refused to accept this demand of the undertaking, which on 20 January proceeded to dismiss 15 per cent of the members of each of the three trade unions existing in COPESA. The Workers' Trade Union No. 1 reacted to this softening up process by insisting on compliance with the collective agreement, which led to the dismissal of 25 more of its members on 9 February 1988 and the announcement that a further 50 would be dismissed. The dismissals that took place after 20 January affected only workers in Trade Union No. 1, since, in view of the attitude adopted by the undertaking, Trade Unions Nos. 2 and 3 agreed to renounce the wage adjustment that was payable as from 1 April 1988. The communication goes on to say that the members of Trade Union No. 1 are production workers whose salaries are the lowest in the undertaking and that the effect of the wage increase on the total payroll entails only a very slight outlay for the undertaking, but that the undertaking is determined not to adjust the wages of the members of Trade Union No. 1 to compensate them for the rise in the cost of living.
3. 261. The communication concludes by stating that as a result of the dismissals, the production staff have to work overtime without the proper rest periods and that their annual leave has been suspended; this shows how arbitrary the dismissals are. It is paradoxical that, while dismissing staff so as to put pressure on the workers and to avoid complying with the agreed wage adjustments, the undertaking has taken on fresh staff at a cost very similiar to the wages of the dismissed staff - most of the new engagements being of administrative staff with closer ties with the management of the undertaking.
4. 262. In a communication dated 5 April 1988 the National Confederation of Federations and Trade Unions of Workers in the Food, Restaurant, Hotel and Allied Trades (CTGACH) denounces the overt pressure brought to bear by the employers through the management of each establishment to discourage unionisation in this sector. According to the complainant, as soon as workers show any sign of planning to organise themselves selective dismissals are made; the most active workers are summoned to the enterprise's administrative offices, and if the situation continues mass dismissals are ordered. This practice is especially common in small establishments employing up to 20 workers, where the employer habitually uses informers to prevent the workers from organising themselves and making subsequent demands for higher wages. The complainant adds that when workers go ahead with their decision to organise themselves, the employers dismiss all the persons concerned, or all the workers who in their opinion are the ringleaders. Collective agreements are used as a delaying tactic when workers plan to organise, but at the end of it all the workers very rarely still have their jobs. The complainant cites as examples the Savory, Bali Hai and Vegetariano establishments, adding that the workers who are not dismissed eventually give up in the face of the persecution to which they are subjected - jobs switched, longer hours, pay docked, etc. The complainant further alleges that undertakings in which there are established trade unions take advantage of the law to carry out mass dismissals, as occurred at the Hotel Carrera (where in 1985 100 workers were dismissed) the Hotel Sheraton (70 workers) the Copasin food store (100 workers), the Dos en Uno food store (200 workers) in 1986 at the end of the collective bargaining process. The current legislation is also used to dissolve trade unions. In 1985 alone, for example, trade unions were dissolved in the Violeta Peebles foodstuffs industry, the Hotel Claridge in Santiago, the Waldorf restaurant, the Hotel Isabel Riquelme-Chillan, the Conin company, the Prosit soda fountain and the Autogrill restaurant. The communication cites the typical example of the Rincón Alemán in the town of Los Angeles where the trade union was dissolved while the workers were engaged in collective bargaining and were protected by trade union immunity.
5. 263. The CTGACH states that notwithstanding the many obstacles in this sector the workers organise and maintain trade unions in many undertakings, with the result that the employers' strategy has now switched to that of summoning non-unionised workers to the personnel manager's office where they are warned that they are better off as they are and are offered individual contracts instead of the benefits of the collective agreement; the employers then tackle the unionised workers who are made to sign the said individual contracts under threat of dismissal.
6. 264. The complainant further adds that another method of breaking up trade unions in this sector is to contract work out: the employer contracts the services of outside undertakings (many of which are set up by their own executive) to take over the work of various sections and then dismiss the workers who were employed in them. There are several examples of this, such as the Marriot Chile undertaking where only 30 per cent of the staff are said to belong to the undertaking while the remaining 70 per cent work for various subcontractors, and the Hotel Carrera which has started turning over its various departments to subcontractors who currently employ nearly 50 per cent of the staff. This practice, the complainant alleges, makes all workers fear for their jobs and puts a stop to any form of organisation.
7. 265. The CTGACH communication affirms that the employers in this sector have begun to persecute and dismiss trade union leaders systematically, sometimes on unfounded "grounds of dismissal". It cites the following examples:
   • - Three years ago the leader of the Culinary Arts Trade Union, Luis Humberto Benétez (now the CTGACH youth officer) was unjustifiably dismissed by his employer, the Club de la Unión in Santiago. Although he took all the appropriate legal measures and won his case on every occasion, the undertaking refuses to reinstate him in his employment.
   • - Over the last two years the trade union leader in the Copasén undertaking, Angel Catalán (the Secretary-General of the CTGACH), has been contesting his dismissal in court, but there is so far no possibility of his being reinstated.
   • - Four years ago Arsenio Angulo, President of the trade union in the Autogrill restaurant, was dismissed; to date his case has not been settled.
   • - Juan Montalbán, chairman of the Sindicato Interempresas de Santiago (Santiago Inter-Enterprise Trade Union) was dismissed two months ago and his employer refuses to reinstate him; in this case it must be said that the labour inspectorate has not been as efficient as it should have been. These are the most notorious cases. Moreover, in the provinces, where all kinds of pressure are brought to bear by employers, many trade union leaders are giving up their union posts and not taking their cases to court because it is impossible to obtain any effective or prompt action.
8. 266. The complainant's communication also refers to the inter-enterprise trade unions, whose members often work in small establishments with a single owner who in many cases changes the firm's company registration for the sole purpose of avoiding the formation of trade union. These trade unions have repeatedly denounced the absence of collective agreements, failure to pay the minimum legal wage, and imposition of working days of up to 18 hours without any overtime pay; when a worker complains, there are immediate reprisals and the worker has to overcome a host of bureaucratic obstacles to get paid. When a complaint is filed with the labour inspectorate the employer denies any connection with the worker, who then has to take his case to the labour courts. In these circumstances, the worker usually leaves his job without taking any steps to enforce his rights, because he cannot afford the cost of all the legal formalities of hiring lawyers, etc.
9. 267. In a further communication dated 4 May 1988, the CTGACH sends additional information on the refusal to grant May Day, which happened to fall on a Sunday, by the Hotel Carrera; on attacks against trade union leaders; on the case of Humberto Benétez who has not been reinstated although his court case was successful; on trade union leader Juan Montalbán Lopez (Chairman of the Provincial Restaurant Union) who was ordered by the Labour Inspectorate to present himself at his workplace for reinstatement and, not having accepted the working conditions imposed by his employer, who is chairman of the group of soda fountain and restaurant owners, was violently treated by her son and now is without work. The CTGACH raises other cases of dismissals after concluding collective agreements:
   • a) Francisco de Aguirre Hotel-Serena: negotiations finished on 10 April after ten days' strike with an undertaking from the company not to engage in reprisals; however, to date five dismissals have occurred all based on "operational requirements of the company".
   • b) Evercrisp Food Products Company: for over three years the workers have been trying to organise, with the company dismissing the most committed workers whenever it discovered their intentions; on 26 April four workers were dismissed for "operational requirements of the company".
   • c) Central de Restaurant Company: one of its executives is an ex-union leader and whenever even the slightest action is attempted, he calls the workers to the company's central offices where they are threatened and, if there is a hint that they are unionised, dismissed. In each of the company's casinos there are informants who use information on past events to bring charges against possible organisers.
10. d) "2 in 1" Company: since the last negotiations, persecution of the union and its members has become common practice. A parallel organisation has been set up inside, all workers have been forced to sign individual contracts which are then registered with the Labour Inspectorate as collective ones in violation of the law, and today, when despite all this the workers have formed a union to bargain collectively in conformity with the law, the company has started selective dismissals and to pressure the workers into signing voluntary increases so as to obstruct the bargaining.
11. 268. In a communication of 13 April 1988 the ICFTU denounces the dismissal by the Chilean authorities of 17 trade union leaders and more than 100 workers from the state railways. The trade unions in the state railways had petitioned the Government for various social and economic improvements and, having failed to obtain any reply, called a strike. The ICFTU adds that among the dismissed trade union leaders were Miguel Muñoz and José Criado of the Comando Nacional de Trabajadores (National Grouping of Workers). In a further communication dated 26 April 1988, the ICFTU states that faced with the agreement of the railway workers' unions to go on a warning strike on 7 April 1988 in support of calls against the privatisation of the undertaking, government and management authorities replied by dismissing 17 union leaders and 83 unionised workers. This company measure obliged the unions to commence an unlimited strike on 12 April 1988. The dismissed union leaders are:
    • - José Criado. President (Fed. Nacional Trabaj. Ferroviarios)
    • - Germán Díaz. Secretary (Fed. Nacional Trabaj. Ferroviarios)
    • - Miguel Muñoz. Secretary General (Fed. Nacional Trabaj. Ferroviarios)
    • - Ceferino Barra. President (Sindicato Número 1)
    • - Juan Díaz. Secretary (Sindicato Número 1)
    • - Rafael Rivera. Treasurer (Sindicato Número 1)
    • - José Ortega. Director (Sindicato Número 1 de Santiago)
    • - Guillermo Munizaga. Director (Sindicato Número 1 de Santiago)
    • - Hugo Salinas Treasurer. (Sindicato Número 1 de Bernardo)
    • - René Vilches Director. (Sindicato Número 1 de Bernardo)
    • - Oscar Cabello Director. (Sindicato Número 1 de Bernardo)
    • - Tito Ramírez Secretary. (Sindicato Número 4 de Santiago)
    • - Juan Contreras President. (Sindicato Número 5 de Tracción)
    • - José Morales Secretary. (Sindicato Número 5 de Tracción)
    • - Orlando Gahona Treasurer. (Sindicato Número 5 de Tracción)
    • - Iván Orellana Director. (Sindicato Número 5 de Tracción)
    • - Luis Pradenas Director. (Sindicato Número 5 de Tracción)
12. 269. In a communication of 13 April 1988 the Central Democrática de Trabajadores (Workers' Democratic Confederation) denounces the dismissals of trade union leaders and workers from the Chilean state railways, ordered by the Director of that undertaking, and adds that the dismissals are on the increase because they are supported by the Ministry of Transport and the Minister of Labour - which is a violation of trade union immunity and of the right to work.
13. 270. In a communication of 26 April 1988, CONTEXTIL refers to problems facing workers of the Trade Union of the Curtiembre Interamericana Company and its own national executive council in the collective bargaining which has just come to an end with the Company. It states that for many years the workers of the Company have been seeking solutions to their wages, social and labour problems always finding, through collective bargaining, understanding of its problems by the Company. On 15 February 1988, 40 workers presented their claims in a collective agreement in accordance with the law, but the Company refused to receive it forcing the negotiating committee to turn to the labour bodies so that a labour inspector would officially present the draft agreement to the Company. From this moment on the employer engaged in a series of unfair labour practices against the workers involved in the draft, such as changes of places of work with salary drops, the dismissal of the Company's secretary, Mrs. Estela Miranda, being blamed as being behind the presentation of the draft and her arrest by unknown persons who threatened her for her participation in the lawful strike which, at that date, was 30 days' old. The Company was still refusing to find a solution to the labour dispute, hiding behind the labour legislation contrary to the interests of the workers.

C. The Government's replies

1. 271. In its communication of 8 March 1988 the Government comments that it is surprised at the way standard procedure is abused in order to accuse a member State, often irresponsibly and solely for the purpose of having the Government condemned. The Government's communication maintains that many alleged violations of freedom of association are not violations at all, and at most amount to non-compliance with, or infractions of the ordinary penal law, that the normal courts are competent to handle and judge. The Government expresses concern because, it claims, the complaint attempts to represent as the sole representatives of the Chilean trade union movement a small group of persons whose names constantly and repeatedly appear in complaints to international organisations. The Government states that on 31 December 1986 there were in Chile 11,215 trade union officials leading 386,987 workers belonging to 5,391 trade unions, 131 federations and 31 national confederations, and it is hard to see how the 11,215 leaders of the Chilean trade union movement can be said to be encountering difficulties when at most only a dozen are cited in the complaints made to international organisations. It might be argued that they are leaders of powerful trade unions that are very representative of the trade union movement; but the best known of them, Manuel Bustos, was elected by 391 votes in his trade union, which has 900 members. The Committee regularly receives complaints against police action that is taken to maintain order and to enforce respect for the freedom of movement of pedestrians and vehicles. The complainants consider that public demonstrations can bring about better working conditions and resolve economic and social policy issues. But the Government states that it cannot regard as legitimate public demonstrations involving the stoning of public transport vehicles, the setting up of barricades, the incitement of parents not to send their children to school, the injuring of members of the police force, the violent death of children and innocent persons, and substantial damage to public and private property. The Government cannot call such "demonstrations" legitimate, especially when their purpose is to destabilise the Government by making the country ungovernable.
2. 272. The Government refers to the ban on various trade unionists from entering the country and states that Rolando Calderón A. and Hernán del Canto R. are in exile because they sought refuge in an embassy in 1973. Both held political posts as Ministers of State in the Allende Government and both, along with Mario Navarro, are barred from entering the country. The Government is constantly reviewing the list of persons in exile in with a view to their return. The exile of the persons named has nothing to do with any supposed trade union activities but only with activities engaging their political responsibility. As regards Luis Meneses Aranda, the communication states that on 23 December 1987 he was authorised to enter the country and was granted a temporary visa for 90 days so that once in the country he could arrange for his temporary or permanent residence and regularise his situation as regards the loss of his Chilean nationality. When Chilean nationality has been lost it may be reacquired by law, in accordance with article 11 of the Political Constitution.
3. 273. Lastly, the Government refers to the raid on the headquarters of the Federation of Self-Employed and Part-Time Workers' Trade Unions and on the home of trade union leader Alejandro Olivares Pérez; it states that there is no record either with the police or in the courts of any such occurrence and that the persons allegedly affected have not lodged any complaint or appealed to the law courts.
4. 274. In its communication of 7 April 1988 the Government provides information on the legal position of the trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, stating that the appeal instigated by the defendants' lawyers was heard by the Second Chamber of the Santiago Court of Appeal, where the pleas of the parties' lawyers were heard and a settlement was reached. On 21 March 1988 the Second Chamber of the Santiago Court of Appeal found for the appellants, quashed the verdict of the Court of First Instance appealed against, and acquitted Messrs. Bustos, Martínez and Labraña of the offences referred to in section 11 of the State Security Act. These persons are still at liberty and are enjoying all their trade union rights.

D. The Committee's conclusions

1. 275. With regard to the comments made by the Government in its communication of 8 March 1988 on the alleged abuse of the supervisory procedures, and in particular the complaints of violations of freedom of association submitted to the Committee, in order to obtain condemnation of the Government, and on the representative character within the trade union movement of persons whose names frequently appear in such complaints, the Committee wishes to recall that, since it was formed, it has always stressed that the function of the International Labour Organisation as regards freedom of association and protection of the individual consists in promoting the effective application of the general principles of freedom of association, which is one of the principal guarantees of peace and social justice. Its function consists in guaranteeing and promoting freedom of associaton of workers and employers, not in bringing accusations against governments or condemning them. In carrying out its task, the Committee has always been particularly careful to apply the procedure developed over the years and to avoid exceeding its terms of reference. To avoid misunderstanding or misinterpretation, the Committee has thought it necessary to recall that its functions are limited to examining the complaints submitted to it; it is not called upon to formulate general conclusions on the trade union situation in particular countries on the basis of vague generalisations, but to assess the merit of the specific allegations made.
2. 276. As for the ban on the re-entry into Chile of Rolando Calderón Aránguiz, Hernán del Canto Riquelme and Mario Navarro, the Committee notes the Government's repeated statements that the list of persons in exile is constantly being revised so as to allow their return. The Committee also notes the Government's claim that their exile has nothing to do with any supposed trade union activities but only with activities engaging their political responsibility. In this respect the Committee wishes to recall that the forced exile of trade unionists is contrary to human rights and is a serious matter as it deprives them of the possibility of working in their own country; moreover, it is a violation of freedom of association, as trade union organisations are weakened by being deprived of their leaders. Furthermore, the Committee wishes to recall, in view of the close relationship between freedom of association and basic human rights, that the ban on entry into the country imposed on certain trade unionists is contrary to the provisions of international instruments on this subject. Thus article 12(4) of the International Convenant on Civil and Political Rights states that "no one shall be arbitrarily deprived of the right to enter his own country", and article 13(2) of the Universal Declaration of Human Rights that "everyone has the right to leave any country, including his own, and to return to his country."
3. 277. As regards the situation of the trade unionist Luis Meneses Aranda, the Committee notes the Government's statement that he was granted a temporary 90-day visa on 23 December 1987 so as to be able to regularise his situation as regards reacquisition of his Chilean nationality. The Committee hopes that, in accordance with the legislation, Chilean nationality will be restored to the trade unionist Meneses Aranda shortly.
4. 278. As regards the raid on the headquarters of the Federation of Self-Employed and Part-Time Workers' Trade Unions and on the home of trade union leader Alejandro Olivares Pérez on 1 May 1986, the Committee notes the Government's observation that the persons allegedly affected have not submitted any complaint or filed any lawsuit and that the police have no record of any such occurrence.
5. 279. As regards the legal situation of the trade union leaders Manuel Bustos, Arturo Martínez and Moisés Labraña, the Committee notes with interest the information supplied by the Government to the effect that the Second Chamber of the Santiago Court of Appeal upheld the appeal instigated by the defence counsel of Messrs. Bustos, Martínez and Labraña, quashed the verdict of the Court of First Instance condemning them, and acquitted these trade union leaders.
6. 280. Lastly, the Committee observes that the Government has not sent its observations on certain allegations submitted in this case, namely: on the communication of the COPESA Workers' Trade Union No. 1 relating to the dismissal of members of that trade union who resisted pressure brought by the undertaking to make them give up a wage increase due as compensation for the rise in the cost of living which had been agreed on in a collective agreement made with the undertaking; on the complaint submitted by the CTGACH regarding the pressure brought to bear by the employers on workers in this industry to prevent them from forming an organisation; on the mass dismissals after the conclusion of collective agreements; on the dissolution of trade unions in this sector; on the pressure brought to bear by employers to force workers to sign individual contracts instead of enjoying the benefits of collective agreements and on the use of subcontracting as a means of avoiding unionisation; on the dismissal of trade union leaders and the situation in inter-enterprise trade unions; on the complaint submitted by the ICFTU and the Workers' Democratic Confederation relating to the dismissal of 17 trade union leaders (including Miguel Muñoz and José Criado of the National Grouping of Workers (CNT)) and more than 100 workers of the state railways for having petitioned the Government on socio-economic demands and for having called a strike when no reply was made to their petition; on CONTEXTIL's allegations of difficulties facing workers in the Union of the Curtiembre Interamericana Company in concluding a collective agreement with the Company and the latter's unfair labour practices against workers involved in the negotiating committee for the draft collective agreement.