Report in which the committee requests to be kept informed of development - Report No 218, November 1982

Case No 1152 (Chile) - Complaint date: 18-AUG-82 - Closed

1. 258. In a communication of 18 August 1982, the Trade Unions International of Workers in Commerce (TUIWC) presented a complaint of violation of trade union rights in Chile. The Government forwarded its observations in a letter dated 28 September 1982.
2. 259. Chile has not ratified either the Freedom of Association and Protection of the Fight to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 260. The complaint refers to the dismissal by the footwear undertaking of Gino d'Arturo Farias, President of the National Federation of Workers in Commerce and Co-operatives of Chile.
2. 261. The complainant organisation explains that Mr. Arturo Farias was entitled to special protection under the law by virtue of the fact that he was a trade union leader. Furthermore, he had additional rights as he has 18 years seniority in the undertaking.
3. 262. In the view of the TUIWC, the dismissal of Mr. Arturo Farias is a measure of reprisal against the trade union organisation of which he was the leader, aimed at hindering and preventing its activities.

B. The Government's reply

1. 263. In its communication, the Government confirms that Mr. Arturo Farias was dismissed by his undertaking on 12 June 1982. On 16 June 1982 an inspector of the Ministry of Labour went to the company's head office to verify whether, in this instance, the legislation in force had been respected.
2. 264. According to section 22 of Legislative Decree No. 2200 of 1978, the Government continues, in the case of workers subject to trade union protection, the employer shall not terminate any contract of employment without prior permission from a court, which can only be granted in cases expressly provided for in the Legislative Decree, that is: expiry of a contract of specified duration; completion of the work for which the contract was concluded; dishonesty, acts of violence, insults or highly immoral conduct; business carried on by the worker within the undertaking's range of activities, if it has been prohibited by the employer in writing in the worker's contract; the worker's failure to report for work; the worker's desertion of his job without a valid reason; any serious failure to discharge the obligations implicit in the contract; the operating requirements of the undertaking, establishment or service.
3. 265. According to the Government, in this case the dismissal was issued without prior judicial permission having been requested. The undertaking cited reasons of staff reduction and carried out the dismissal under section 13(f) of Legislative Decree No. 2200 of 1978.1 As the undertaking had infringed the law by failing to seek judicial permission, the labour inspector imposed the maximum fine provided for by the legislation, namely the equivalent of US$ 450.
4. 266. The trade union leader concerned brought an appeal to the courts against his employer. The proceedings are under way and the Government will send the judgement when it is given.
5. 267. In conclusion, the Government considers that there has not been an infringement of freedom of association since, four days after the dismissal, a labour inspector went to the spot and penalised the undertaking after finding that the law had been broken.

C. The Committee's conclusions

1. 268. The present case concerns the dismissal of a trade union leader in the footwear sector. The Committee notes that the undertaking which effected the dismissal failed to respect the provision of Chilean legislation which requires prior permission from a court before any trade union leader is dismissed. Having noted this infringement, the labour inspector reported the undertaking.
2. 269. While noting that the employer has thus been penalised, the Committee must emphasise that in its view the imposition of relatively modest fines on undertakings which have infringed provisions protecting trade union leaders is not always a strong enough deterrent to prevent acts of anti-union discrimination. One way of affording effective protection might be to consider the dismissal of a trade union leader null and void as long as prior permission has not been granted.
3. 270. In this respect, the Committee believes it should draw the Government's attention to the Workers' Representatives Recommendation, 1971 (No. 143), Paragraph 6 of which lists a number of measures which might be adopted to ensure effective protection of workers' representatives. These measures include, in particular, the reinstatement of workers' representatives in their jobs in the event of unjustified dismissal with payment of unpaid wages and with maintenance of their acquired rights; provision for laying on the employer the burden of proving that the dismissal was justified; recognition of a priority to be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce.
4. 271. In this case, the Committee notes that the person concerned has brought an appeal before the courts. It considers that it would be useful for it to have the judgement to be handed down so that it may determine the circumstances or reasons for the dismissal of Mr. Arturo Farias in full knowledge of the facts.

The Committee's recommendations

1. 272. In these circumstances, the Committee recommends the Governing Body to approve this report and in particular the following conclusions:
   • (a) The Committee draws to the Government's attention the measures recommended by the Workers' Representatives Recommendation, 1971 (No. 143) to afford effective protection to such representatives.
   • (b) The Committee requests the Government to provide i± with a copy of the judgement to be handed down following the appeal brought before the courts by the person concerned.