Report in which the committee requests to be kept informed of development - Report No 176, March 1978

Case No 823 (Chile) - Complaint date: 12-AUG-75 - Closed

5. In pursuance of the resolution concerning human and trade union rights in Chile adopted by the international Labour Conference at its 60th Session (June 1975), and following requests from the Governing Body, the Government submitted four reports under article 19 of the ILO Constitution on the measures taken to comply with the recommendations of the Fact-Finding and Conciliation Commission, whose final report had been accepted by the Government. The first of these reports was examined by the Governing Body during its 198th Session (November 1975). The others were the subject of reports by the Committee which were respectively approved by the Governing Body at its 200th, 201st and 203rd Sessions (May 1976, November 1976 and May 1977).

1. 5. In pursuance of the resolution concerning human and trade union rights in Chile adopted by the international Labour Conference at its 60th Session (June 1975), and following requests from the Governing Body, the Government submitted four reports under article 19 of the ILO Constitution on the measures taken to comply with the recommendations of the Fact-Finding and Conciliation Commission, whose final report had been accepted by the Government. The first of these reports was examined by the Governing Body during its 198th Session (November 1975). The others were the subject of reports by the Committee which were respectively approved by the Governing Body at its 200th, 201st and 203rd Sessions (May 1976, November 1976 and May 1977).
2. 6. In paragraph 43 of its 171st Report, the Committee recommended the Governing Body to request the Government to continue to supply information on the evolution of the situation with respect to the recommendations of the Fact-Finding and Conciliation Commission, and to submit a report on this subject by 1 October 1977. The Government submitted this report in a communication dated 26 September 1977.
3. 7. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1946 (No. 87), nor the Right to organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Question of the adoption of new trade union legislation and trade union activities in the country
  8. 8 The Fact-Finding and Conciliation commission had recommended that the Government adopt without delay new trade union legislation which, in order to be in conformity with the principles of freedom of association enshrined in the Constitution of the International Labour Organisation and to permit the ratification, as the Government stated was envisaged, of the freedom of association Conventions, which contain very clear provisions on this question, should recognise, in particular, certain principles concerning the right of workers, without distinction whatsoever, to establish organisations of their own choosing, without previous authorisation; the right of organisations to hold meetings, to elect their representatives in full freedom, and to organise their administration without interference by the authorities, and the right of organisations to enjoy full guarantees as to facilities for their defence if the question of their suspension or dissolution should come before the courts.
  9. 9 In its previous reports, the Government stated that Book II of the draft Labour Code, dealing with trade union organisations, was being examined by the Council of State. The Government further indicated that a report containing a technical appraisal of this part of the Code was due to be submitted to the President of the Republic during the second quarter of 1977. The reports also supplied statistics as to the number of trade union organisations in the country and their membership.
  10. 10 At its may 1977 session the Committee recommended the Governing Body to urge the Government to promulgate the new trade union legislation as soon as possible and to repeal Legislative Decree No. 198 in order to ensure the normal functioning of trade union activities.
  11. 11 In its report of 26 September 1977, the Government stated that there had been continued progress towards the establishment of a new political and institutional system which would be one of genuine social participation. Furthermore, legislation to supplement Constitutional Act No. 3 was now in preparation, under which expert tribunals would be set up for the settlement of industrial disputes when they reached the arbitration stage. The Government quoted a statement by the President of the Republic affirming that the new democracy would insist on the reorganisation and reactivation of the bodies acting as intermediaries between the citizen and the State. Trade unions and occupational associations, continued the Government, should accordingly be able to participate and make their contribution on a progressively increasing scale.
  12. 12 As far as trade union activities were concerned, the Government once again went into the question of trade union elections. It stated, as it had done in its previous report, that trade union elections had been provisionally suspended along with all other elections, irrespective of their nature. Moreover, under Legislative Decree No. 198, where it was not possible to apply the system of appointing trade union leaders on the basis of seniority, the workers were free to propose names to the Ministry of Labour.
  13. 13 The Government further stated that trade union activities continued and were being carried on normally, with no restrictions other than those made necessary by the economic situation inherited from the previous Government, the suspension of elections and the state of siege, the prolongation of which was still justified in the interests of the population as a whole. The Government added that officials of diverse organisations which in the past had the most varied political affiliations were today publicly performing their functions. A delegation from the world Confederation of Labour, headed by its President, Mr. Marcel Pépin, recently visited Chile and had interviews with the authorities and workers' organisations and other institutions selected by the delegation in full independence. The delegation carried out its activities in Santiago and in the provinces in absolute freedom.
  14. 14 The Committee observes, from a reading of the Government's report, that the Government makes no further mention of the draft trade union legislation. Yet it had stated in its previous report that a technical appraisal of this draft legislation prepared by the Council of State was to be submitted to the President of the Republic during the second quarter of 1977. The Committee considers it useful to refer to the conclusions formulated in this connection by the Fact-Finding and Conciliation Commission. The Commission stated that it had "come to the conclusion that there is a general feeling that there should be a return to normal as soon as possible in the trade union and industrial relations field. To achieve this" - continued the Commission - "it is considered necessary that the Government should recognise in law and in practice the right to elect trade union executive Committees, in full freedom, so that the workers may choose for themselves the leaders they wish to represent them, and these leaders may have the feeling that they are performing their functions with a legitimate mandate from their members; the right to hold meetings without hindrance in order to discuss freely problems and economic and social demands". More than four years after the change of regime, it is an undeniable fact that most of the restrictions imposed on trade union activities, particularly under Legislative Decree No. 198, to which attention was drawn by the Fact-Finding and Conciliation Commission, are still in effect today.
  15. 15 It nevertheless appears, on perusal of various statements made by trade union organisations and leaders and quoted by the Chilean press, that the repeal of Legislative Decree No. 198 and a return to normal trade union activity are still the main desire of a wide cross-section of the Chilean trade union movement. The Committee wishes to express its deep concern at the slowness in adopting new trade union legislation conforming to the ILO's principles. It wishes to urge the Government once again to repeal Legislative Decree No. 198, which the Government itself has described as a transitional measure, and to promulgate without delay legislation guaranteeing the free exercise of trade union rights in compliance with the recommendations of the Fact-Finding and Conciliation Commission.
• Collective bargaining
  16. 16 The Fact-Finding and Conciliation commission had expressed the hope that collective bargaining, which was prohibited, would be resumed as soon as possible, and had recommended that in the meantime, as a temporary measure, the Government generalise the setting up of tripartite advisory Committees, composed of representatives freely elected by their organisations, with a view to making improvements in the remuneration resulting from the general automatic adjustments.
  17. 17 In its previous report the Government had stated that collective bargaining had been suspended until March 1978. However, according to the Government, this did not mean that voluntary negotiation between employers and workers within an undertaking was forbidden. The Government had added that such negotiation frequently took place, in addition to the activities carried on by the tripartite Committees. As regards the latter, the Government announced certain changes which would make it possible for employers' and workers' representatives to conclude collective agreements without the endorsement or approval of the authorities being necessary. The Government would intervene only in the event of disagreement between the parties, or in order to safeguard the general interest.
  18. 18 At its may 1977 session the Committee recommended the Governing Body to note with interest the changes contemplated in the system of tripartite Committees, and to express the hope that they would constitute a step towards the full re-establishment of free collective bargaining.
  19. 19 In its report of 26 September 1977, the Government reaffirmed that the temporary suspension of collective bargaining did not mean that voluntary negotiation between workers and employers within an undertaking was forbidden. Such negotiation frequently took place, in addition to the activities carried on by the tripartite Committees. The Government had continued to implement its policy of periodic automatic adjustments in remuneration.
  20. 20 The Government referred to the role played by the tripartite Committees, the establishment of which, it claimed, was consistent with the ILO's principle of tripartism. These Committees, which to begin with acted purely in an advisory capacity, had undergone substantial changes, according to the Government, as a result of the promulgation of Legislative Decree No. 1765 of 30 April 1977 and Decree No. 203 of the Ministry of Labour and Social Welfare dated 20 August 1977. The innovations introduced broadened the terms of reference of the Committees, since henceforth their decisions would have deliberative status. These decisions were to be taken by a unanimous vote by the three groups - workers, employers and Government - each of which would have one vote. In addition, an agreement arrived at unanimously by a tripartite Committee was converted into a collective labour agreement if no objection was made to it by the authorities within 60 days (this time limit could be extended for a further 30 days).
  21. 21 Where agreement cannot be reached, or where objections or observations made by the Government were not accepted, the case was referred to the Ministry of Labour which, by an order made jointly with the Ministry of the Economy, could fix rates of remuneration higher than those payable under the automatic adjustment system. The Government further stated that as a result of the new provisions the decisions of the tripartite Committees, ratified explicitly or tacitly, and the orders made by the Ministries of Labour and of the Economy in the event of failure to reach agreement, would be binding upon all workers and employers in the areas, undertakings or sectors of production concerned. In addition a technical advisory board, composed of representatives of the Ministries of the Interior, Labour and the Economy, had been set up to assist the Ministry of Labour in regard to all matters pertaining to the tripartite Committees.
  22. 22 The Committee has examined carefully the new provisions adopted by the Government with respect to the tripartite Committees. The Committee notes that the decisions of these Committees may, if they are agreed upon unanimously, and the Government raises no objections, be given the status of collective labour agreements and be binding upon all workers and employers in the undertakings or branches concerned. For these agreements to become valid, it is necessary, in the first place, for unanimity to be reached within the Committee - i.e. for the government representatives on the Committee to vote in favour - and, in the second place, for there to be no objections on the part of the Government to the decision taken by the Committee. In consequence the newly adopted provisions in no way dispense with the need for government approval, contrary to the information given by the Government in its previous report.
  23. 23 The Committee must recall that the need for prior approval of collective agreements by the authorities is contrary to the whole system of voluntary negotiation. As concerns the presence of government representatives on Committees, the Committee recalls that the Tripartite Advisory Meeting on Collective Bargaining (May 1976) examined problems connected with collective bargaining in tripartite bodies established at the central level or by industry. The participants in the Meeting remarked that the workers feared to be placed in the minority in tripartite negotiations, and expressed the view that the role of the State in this case should essentially be one of co-ordination.
  24. 24 In the present case, the Committee considers that it is of the utmost importance that the Government should take account of these principles and considerations, and, that it should re-examine in this light the functioning of the tripartite Committees with a view to ensuring greater freedom in collective bargaining.
• Problems relating to certain trade union organisations
  25. 25 The Fact-Finding and Conciliation commission had recommended that the Government normalise the financial situation of the Ranquil Confederation and the United Confederation of Workers and Peasants and make it possible for these Confederations and the organisations affiliated to them to resume their trade union activities.
  26. 26 At its May 1977 session, the Committee recommended the Governing Body to remind the Government that the Committee still required information concerning the Ranquil Confederation and the United Confederation of Workers and Peasants in order to be able to assess the present situation of these organisations.
  27. 27 In its report of 26 September 1977, the Government stated that the present executive Committee of the Ranquil Confederation, elected on 15 October 1972, had had its term of office extended in accordance with Legislative Decree No. 198. The same was the case for the United Confederation of Workers and Peasants, whose executive Committee was elected on 16 November 1972. The Government further stated that the President of the Ranquil Confederation, Sergio de Jesús Villalobos, had gone to Paris in July 1977 to attend an international trade union meeting convened by the Federation of Agricultural and Forestry Workers of France. The Government stated, in conclusion, that both organisations were carrying on their activities normally and that various examples could be cited to show that this was so.
  28. 28 The Committee notes the information supplied by the Government concerning the Ranquil Confederation and the United Confederation of Workers and Peasants. It observes, however, that the Government confines its remarks to a general statement that these organisations are carrying on their activities normally without giving details as to the activities carried on in the country as a whole. The Committee would like to receive such information, particularly as concerns the organisation of national, provincial and local meetings and the representation, if any, of these Confederations on the Tripartite Committee for Agricultural Activities. The Committee would also like to know whether the premises and property of these organisations which had been closed or confiscated have now been returned to them.
  29. 29 As regards the National Federation of Textile and Clothing Workers (FENATEX) and the Industrial Federation of Building, Wood and Building Materials Workers (FIEMC), the Fact-Finding and Conciliation Commission had recommended that the Government adopt measures removing the obstacles preventing legal personality being granted to these trade union organisations.
  30. 30 At its May 1977 session the Committee recommended the Governing Body to remind the Government that it still required information concerning the measures taken to grant legal personality to the FIEMC and the FENATEX.
  31. 31 In its report of 26 September 1976, the Government stated that, because of legal considerations outside its control, legal personality had not been granted to these organisations. The organisations concerned had only themselves to blame, as both had failed to comply with the legal formality of drawing up a Constitution. However, the Government pointed out, this had not prevented the two federations in question from functioning in practice. The trade union activities of their presidents and other officers were common knowledge throughout the country, as evidenced in particular by the requests they had publicly addressed to the authorities.
  32. 32 The Committee notes the observations provided by the Government in this connection. The Committee would nevertheless like to know whether, despite not having legal personality, these two federations are allowed to collect union dues from their members in the normal manner, particularly under the check-off system.
  33. 33 As regards the National Association of Education Service Employees (ANESE), the Fact-Finding and Conciliation commission had recommended that the takeover of this organisation be brought to an end. At its May 1977 session the Committee recommended the Governing Body to request the Government to supply information on the situation of the ANESE.
  34. 34 In its report, the Government stated that this organisation was carrying on its activities normally as proved by a document dated 11 August 1977 appended to the report and signed by the organisation's leaders. The Government further stated that the ANESE had been reorganised under Decree No. 517 of 18 June 1974 whereby its executive Committee was composed of six serving officials of the Association and three representatives of the Ministry of Education. At present the executive Committee had five members, four of whom were officials who had already been in office at the time of the reorganisation.
  35. 35 In the Committee's opinion it is not clear from the information supplied by the Government whether the ANESE is still being run by the authorities or not. The Committee would like the Government to state whether the members of the executive Committee still include a representative of the Ministry of Education.
• Civil liberties relevant to the exercise of trade union rights
  36. 36 The Fact-Finding and Conciliation Commission had pointed out, inter alia, that the right not to be arrested except in accordance with the ordinary criminal procedure should be guaranteed, and that protection against all forms of ill-treatment during detention should be guaranteed through the issuance of special instructions prescribing effective penalties.
  37. 37 In earlier reports the Government had mentioned the adoption of various decrees in January and February 1976, providing in particular for visits to places of detention without prior notice by the President of the Supreme Court and the Minister of Justice, medical examinations for detainees, investigations where there was evidence of ill-treatment, and the obligation to send a copy of the arrest warrant to detainees' relatives, indicating the place of custody. The Government had also stated that these measures had been supplemented by the adoption of a legal appeal procedure for use in the event of non-compliance with the obligation to notify detainees' relatives of their arrest. The Government further stated that these decrees had been fully applied. It also referred to the adoption of Constitutional Act No. 3, for the protection of certain basic human rights. Finally, the Government had stated in the report submitted for the May 1977 session of the Committee that only one of the persons detained under the emergency powers was still in custody.
  38. 38 In its report of 26 September 1977, the Government stated that all the persons detained under the powers relating to the state of siege had now been released. The improvement in the situation within the country had enabled the Government to wind up the National Intelligence Department (DINA), which had been set up to deal with subversive activities when they were at their worst. The DINA had been replaced by a new institution, the National Information Centre, whose functions in the field of security were informative and not executive. The conditions necessary for the ending of the state of siege and the curfew still did not exist, according to the Government. However, since 11 September 1977 the state of siege had been reduced to a slightly lower degree, that of "simple internal disturbance". As a result the provisions of the Code of Military Justice relating to military courts in peacetime were now in force.
  39. 39 Respect for natural human rights, continued the Government, formed the basis for the Government's Declaration of Principles. According to the Government the extent to which human rights were respected or violated could be evaluated only if examined within the context of the society as a whole to enable deep-seated trends in that society to be discerned. A government might violate human rights not only by its actions, but also by its omissions, if it did not take effective action to deal with groups, persons or situations which were undermining these rights. Likewise human rights could not be said to be respected if the people were left exposed to totalitarian aggression or if the lives, safety and property of citizens were at the mercy of terrorism. According to the Government, in the exceptional cases where it had suspended or restricted certain rights, this had been because it was necessary to do so in order to counteract and put a stop to the activities of terrorists.
  40. 40 The Committee notes the information supplied on this point by the Government, and in particular the statement that all the persons detained under the powers relating to the state of siege have now been released. The Committee proposes to study the specific allegations relating to the arrest or disappearance of numerous trade unionists and former trade unionists, together with the Government's replies thereto, within the context of its examination of Case No. 823.

The Committee's recommendations

1. 41. In these circumstances, the Committee recommends the Governing Body:
   • (a) to note that, in accordance with the decision taken by the Governing Body at its 203rd Session (May 1977), the Government of Chile has submitted a further report on the evolution of the situation with respect to the recommendations of the Fact-Finding and Conciliation Commission on freedom of Association;
   • (b) to express once more its deep concern at the slowness in adapting new trade union legislation and to urge the Government to repeal Legislative Decree No. 198, and to promulgate without delay legislation guaranteeing the free exercise of trade union rights;
   • (c) to request the Government to provide information on the functioning of tripartite Committees and to state what measures are being taken or envisaged to ensure greater freedom in collective bargaining; and to draw the Government's attention to the principles and considerations expressed in paragraph 23 above;
   • (d) to request the Government to furnish the information requested in paragraphs 28, 32 and 35 concerning, respectively, the Ranquil Confederation and the United Confederation of Workers and Peasants, the FENATEX and the FIEMC, and the ANESE;
   • (e) to note with interest the Government's communication to the effect that the persons placed at the disposal of the executive authorities, and as such detained under the powers conferred under the state of siege provisions, have now been released;
   • (f) to note also that the allegations relating to the arrest or disappearance of certain serving or former trade union officials are being examined within the context of Case No. 823;
   • (g) to request the Government to continue to supply information on the evolution of the situation with respect to the recommendations of the Fact-Finding and Conciliation Commission, and to submit a report on this subject by 1 April 1978.