Report in which the committee requests to be kept informed of development - Report No 161, March 1977

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

Summary

• Summary
  5. 5 Having received a series of complaints concerning violations of freedom of association in Chile (Case No. 765), the Committee submitted two reports on this matter to the Governing Body. The Governing Body decided at its 193rd Session (May-June 1974), with the agreement of the Chilean Government, to submit the matter to the Fact-Finding and Conciliation Commission on Freedom of Association, whose final report was accepted by the Government. At its 60th Session (June 1975), the International Labour Conference adopted a resolution concerning human and trade union rights in Chile. In pursuance of this resolution and following requests from the Governing Body, the Government submitted two reports under article 19 of the ILO Constitution on the measures taken to comply with the Commission's recommendations. The first of these reports was examined by the Governing Body during its 198th Session (November 1975). The second was the subject of a report by the Committee which was approved by the Governing Body at its 200th Session (May 1976).
  6. 6 In paragraph 60 of its 159th Report, the Committee recommended the Governing Body, in particular, to call the Government's attention to certain principles and considerations regarding points which had given rise to recommendations from the Fact-Finding and Conciliation Commission on Freedom of Association (particularly the adoption of new trade union legislation, collective bargaining, the situation of certain trade union organisations, human rights and the detention of trade unionists). The Committee also recommended that the Governing Body request the Government to continue supplying information on the development of the situation, especially as regards the matter on which it had not yet supplied information, and to transmit, by 1 October 1976, a report in this regard. The Government submitted this report in a communication of 29 September 1976
  7. 7 Chile has not ratified 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).
  8. 8 In its report, the Government provides information more particularly on legal reforms adopted or under examination with regard to trade union matters and activities in the country, collective bargaining, labour co-ordination Committees, problems relating to certain trade union organisations and matters related to the civil liberties bound up with the exercise of trade union rights.

A. A. The complainants' allegations

• Question of the adoption of new trade union legislation and trade union activities in the country
  9. 9 The Fact-Finding and Conciliation Commission 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 be able to ratify, as the Government stated was envisaged, the freedom of association Conventions, which contain very clear provisions on this question, should recognise, in particular, the following principles:
  1. (1) The right of workers, without distinction whatsoever, including public servants, to establish organisations of their own choosing. The implementation of this principle calls for the avoidance of all restrictions which limit freedom of choice as to the type and number of organisations the workers desire to establish, in the case both of primary trade unions and of federations and Confederations capable of forming organisations for different occupations, activities or industries.
  2. (2) The right of Workers to establish organisations without previous authorisation, and without participation by the authorities in the constituent procedure.
  3. (3) The right of organisations to hold meetings free of control by the authorities, in order to discuss freely matters relating to internal administration and to the defence of the interests of their members.
  4. (4) The right of organisations to elect their representatives in full freedom, without restrictions as to the number of terms of office, and to decide for themselves matters relating to the removal from office of officials by the members.
  5. (5) The right of organisations to organise their administration without interference by the authorities.
  6. (6) 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.
  10. 10 In its preceding reports, the Government stated that tripartite Committees had been set up to participate in the drafting of new labour legislation which would take account of ILO Conventions. It also stated that it was analysing in detail the observations made by workers' and employers' organisations regarding: the draft Labour Code. The Government added that there was considerable trade union activity in Chile and quoted as examples meetings of trade union organisations, meetings between trade union leaders and the authorities and participation by trade unionists in international meetings. At its May 1976 Session, the Committee recommended that the Governing Body urge the Government to adopt without delay trade union legislation conforming to the principles of freedom of association and to end the restrictions on trade union activities which were currently in force.
  11. 11 In its report of 29 September 1976, the Government referred to Constitutional Act No. 3, promulgated on 11 September 1976, and especially to the provisions relating to freedom of association Section 1 (22) of the aforementioned Act guarantees all persons the right to join trade unions connected with a branch of production or service of their particular industry or occupation, in the cases and in the manner prescribed by the law. This section also provides that trade union organisations enjoy legal personality by the mere fact that they have filed their by-laws and constitutive instruments with an autonomous body in the form specified by law. Machinery ensuring the autonomy of trade union organisations and their own financial arrangements will be established by legislation. Commenting on these provisions, the Government states that the Constitution thus establishes a much wider and more flexible system than that hitherto provided for in the draft labour code and the Code at present in force, reflecting the Government's intention to promote powerful trade union organisations genuinely independent of all types of non-occupational interference.
  12. 12 Having pointed out that the new Constitutional provisions also formally recognise the right to work and protection of that right, the Government quotes certain other provisions relating to trade unions and labour disputes. For example, membership of a trade union organisation cannot be made a prerequisite for the exercise of a specific occupation. The Act will establish appropriate machinery to permit the finding of fair and peaceful solutions to labour disputes through compulsory conciliation and arbitration. In the case of arbitration, the decision will lie with special expert tribunals whose decisions will be binding and which will ensure justice to the parties concerned and the protection of community interests. In no case will strikes by state and municipal employees be permitted, nor by persons working in undertakings providing public utility services, or whose stoppage would cause a serious threat to public health, community supplies and the national economy or security.
  13. 13 Regarding the draft labour code, the Government states that it has systematically and carefully analysed the observations made by the workers' and employers' organisations. Moreover, the President of the Republic had consulted the Council of State regarding matters in the draft code concerning trade union organisations. The Government points out in this connection that this consultation demonstrates the basic importance attached by it to labour matters. It adds that the trade union organisations play a fundamental role in the new institutional labour system, and that decisions adopted in this field must be carefully weighed.
  14. 14 The Government also states that it has decided to advance the setting up of works councils and that a bill will be adopted soon for this purpose whose enactment will not be made conditional on the promulgation of the Labour Code.
  15. 15 As regards the exercise of trade union activities, the Government mentions, firstly, that 43 trade union organisations, of which it provides a list, were set up between 1 April and 1 September 1976. Most of these are "occupational" unions of salaried employees. The Government lists the main trade union events which took place between April and August 1976. These consisted mainly of meetings of workers' organisations for various branches of activity (health, salaried employees in the private sector, textiles, plastics, public sector, leather and footwear, transport, commerce, copper, agriculture). Reference is also made to a meeting between representatives of workers of the National Coal Undertaking and the President of the Republic, which took place at Lota during July. The Government then refers to participation by Chilean workers' delegates at international meetings including, for example, some convened by the CLAT or the WFTU, and the visit of foreign trade unionists to Chile.
  16. 16 The Committee notes the promulgation of Constitutional provisions guaranteeing all persons the right to join trade unions in the cases and the forms prescribed by law. Under these provisions, membership of a trade union organisation may not be made a prerequisite for the exercise of a specific occupation. However, the Committee cannot but note that the trade union legislation which is to complement these new Constitutional provisions has not yet been enacted. Consequently, the limitations on trade union activities are still in force over three years after the change in government. Trade union organisations are thereby deprived, at least partly, of the exercise of certain rights essential for their normal operation, particularly as regards elections, meetings, the presentation of claims, collective bargaining and strikes.
  17. 17 However, it appears from the Government's report that the observations made by workers' and employers' organisations concerning the draft labour code have now been studied by the Government and that the draft code has been examined by the Council of State. Under these conditions, the Committee considers it important that the new trade union legislation be adopted without delay and be brought into full conformity with the principles mentioned by the Fact-Finding and Conciliation Commission and recalled on several occasions by the Committee and the Governing Body.
• Collective bargaining
  18. 18 The Fact-Finding and Conciliation Commission pointed out that as a result of certain provisions adopted by the Government, collective bargaining was banned. It expressed the hope that collective bargaining would be resumed as soon as possible and 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. In its resolution, the Conference invited the Government to repeal all enactments limiting the right to collective bargaining.
  19. 19 In its earlier reports, the Government referred to the economic factors that had made the adoption of drastic stabilisation measures necessary until 31 March 1977. The Government nevertheless pointed out that readjustments of remuneration designed to compensate for increases in cost of living had nevertheless been granted and that new tripartite advisory Committees had been set up. At its May 1976 Session, the Committee recommended the Governing Body to note that the Government had increased the number of advisory Committees on remuneration and to point out that an important objective of the Government should be to restore the practice of collective bargaining as soon as possible.
  20. 20 In its report of 29 September 1976, the Government stated that the economic conditions preventing the re-establishment of collective bargaining still obtained. However, the quarterly automatic pay adjustment system was still in force, as well as the possibility of extending collective agreements, arbitration awards or the decisions of tripartite Committees to an entire branch of activity. The Government explained in this connection that inflation had not been completely eliminated, since the annual rate was about 200 per cent. During 1976, it had nevertheless authorised an extraordinary pay adjustment with effect from 1 April for the lowest income categories.
  21. 21 The Government added that the tripartite Committees would be generalised and cease to be advisory and become deliberative, at which time decisions would be adopted unanimously, except in exceptional circumstances where the Government was obliged to step in to protect consumers. A draft modification to the legislation in respect of these Committees was going to be introduced to extend their areas of competence. It would then be possible to consider changes and to introduce working conditions better than those prescribed by law, when the economic situation in the relevant sector made them possible. The composition of these Committees and manner of appointing their members would be established by regulations. As soon as these modifications to laws and regulations had been completed, several tripartite Committees covering new sectors would be formed.
  22. 22 The Committee notes the Government's declared intention of modifying the legislation on tripartite Committees in order to extend their powers and to create others for new sectors. Whilst noting also the formation of new tripartite Committees, the Committee recalls that the Fact-Finding and Conciliation Commission recommended the generalisation of tripartite Committees merely as a provisional measure. The Committee itself has always considered that any restriction on the free establishment of wages by collective bargaining should be applied as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period. The Committee would also remind the Government that the Fact-Finding and Conciliation Commission found a general desire in trade union circles for the earliest possible resumption of collective bargaining.
  23. 23 The Committee therefore wishes to point out once again that one of the Government's main objectives should be the earliest possible reintroduction of collective bargaining.
• Labour co-ordination Committees
  24. 24 The Fact-Finding and Conciliation Commission referred to the co-ordination Committees set up by the Government and composed of representatives of the Government, the army and the trade union organisations. The Commission pointed out the need to ensure that these Committees were not used as a means of channelling the activities of trade unions and recommended that they be converted into tripartite advisory bodies, presided over by an official of the Ministry of Labour and composed of representatives appointed freely by the workers' and employers' organisations.
  25. 25 At its May 1976 Session, the Committee pointed out the importance which it attaches to observance of the Fact-Finding and Conciliation Commission's recommendation to the effect that the labour co-ordination Committees should be converted into tripartite advisory bodies.
  26. 26 In its report of 29 September 1976, the Government stated that the labour co-ordination Committees had been dissolved by Decree No. 377 of 6 August 1976. The Government explained that once the works councils had been set up and the country had been regionalised, the co-ordination Committees ceased to be necessary. New, better and more direct institutions would permit the dissemination of appropriate information at enterprise level, with co-ordination by the national or regional authorities, as appropriate. Furthermore, regionalisation of the country had resulted in administrative reorganisation, and the Ministry of Labour and Social Security had appointed "regional ministerial secretaries" whose terms of reference enabled them to perform adequately the functions for which the labour co-ordination Committees had been created.
  27. 27 The Committee notes with interest the winding up of the labour co-ordination Committees, the simultaneous setting up of works councils and the appointment of regional ministerial secretaries. It expresses the hope that the new institutions and administrative structures will make it possible to promote relations between the public authorities and employers' and workers' organisations and between these latter organisations.
• Problems relating to certain trade union organisations
  • (a) Agricultural workers' organisations
    28. 28 At its May 1976 Session, the Committee recommended the Governing Body to note with interest that the Government had enacted legislation concerning the payment to agricultural workers' organisations of the funds to which they were entitled, but at the same time to point out that the position of the Ranquil Confederation and the United Confederation of Workers and Peasants had not been clarified as the Government had not provided any information on certain points.
    29. 29 In its communication of 30 September 1976, the Government referred in general terms to the financing of agricultural trade union organisations, which is the subject of a complaint dealt with by the Committee at its present session, under case No. 823. On the other hand, the Government provided no information regarding the situation of the Ranquil Confederation and the United Confederation of Workers and Peasants. The Committee regrets that it is consequently unable to examine the conditions under which these Confederations and their member organisations conduct their trade union activities.
  • (b) Other organisations
    30. 30 The Fact-Finding and Conciliation Commission recommended that the Government adopt measures removing the obstacles preventing legal personality being granted to trade union organisations which have applied for it, including in particular the National Federation of Textile and Clothing Workers (FENATEX) and the National Federation of Building, wood and Building Materials (FIEMC), thus enabling these organisations to normalise their position, in particular as regards the collection of union dues.
    31. 31 At its May 1976 Session, the Committee recommended that the Governing Body draw the Government's attention to the need to send specific information on the action taken in respect of the Commission's recommendations with regard particularly to FENATEX and the FIEMC.
    32. 32 In its report of 29 September 1976, the Government stated that the FIEMC had been operating in effect for about 30 years. However, it had not applied to the Labour Directorate for legal personality until January 1974. For that purpose, it had supplied information in February 1974, with a list of the member unions. In March 1975 it had asked to be founded legally with effect from 10 March 1975, but that was not achieved because it had not respected the relevant formalities.
    33. 33 As regards FENATEX, the Government stated that this organisation had existed in effect since 12 October 1953, but had not requested legal personality until September 1974, when it had provided a list, accompanied by documents, of 28 unions and a list of 18 others for which the information supplied was incomplete. No special provisions had been adopted by the Ministry of Labour or the Labour Directorate regarding the collection of dues by the FIEMC and FENATEX. Legislative Decree No. 133 of 20 November 1973 had ended the collection of dues by all organisations not constituted in accordance with the law, which had been the case of the organisations in question. The Government concluded its comments by pointing out that neither the FIEMC nor FENATEX had completed the formalities necessary to obtain legal personality.
    34. 34 The information supplied by the Government shows that the two organisations in question applied for legal personality in 1974 but did not comply with all the relevant formalities. The Committee recalls that, as a general rule, the acquisition of legal personality by workers' and employers' organisations should not be made the subject of conditions prejudicial to the free exercise of trade union rights. In this connection, the Committee notes with interest the provisions contained in the new Constitutional Act No. 3, already mentioned, to the effect that trade union organisations enjoy legal personality by the mere fact of having filed their bylaws and constitutive instruments with an autonomous body in a form specified by law.
    35. 35 The Committee considers that it would be useful for the Government to take all possible measures to overcome the difficulties encountered by the FIEMC and FENATEX in their efforts to obtain legal personality, difficulties which are all the more prejudicial to normal activities in that they prevent the unions from collecting dues from their members.
  • Civil rights in respect of the exercise of trade union rights
    36. 36 The Fact-Finding and Conciliation commission pointed out that it would be highly desirable to give priority to certain objectives, namely the release or bringing to trial of trade unionists in custody under procedures which provide full safeguards of defence and impartial judgement; the guaranteeing of the right not to be arrested except in accordance with the ordinary criminal procedure; and the guaranteeing of protection against all forms of ill treatment during detention, through the issuance of special instructions accompanied by effective penalties. Such measures, and indeed any review of sentences already pronounced or the application of clemency, or even an amnesty, would in the opinion of the Commission certainly help to restore the climate of normalcy which is one of the main conditions for the effective exercise of trade union rights. In addition, the Conference invited the Chilean authorities to release the trade union leaders and others still in custody on trade union and political grounds, to put an end to torture and ill treatment, to do away with the Special Courts and exceptional military jurisdiction and to decree a general amnesty.
    37. 37 In its earlier reports, the Government referred to the extension of the state of emergency "for the purposes of internal security". It also mentioned the adoption of various decrees 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 is evidence of ill-treatment, and the obligation to send a copy of the warrant to detainees' relatives, indicating the place of custody. The Government also stated that these measures had been supplemented by the introduction of a legal appeal procedure for use in the event of non-compliance with the obligation to notify detainees' relatives of their arrest.
    38. 38 At its May 1976 Session, the Committee recommended that the Governing Body, bearing in mind the relation between fundamental human rights and the exercise of trade union rights, note with interest the decrees and other measures designed to ensure the protection of detainees' rights and that it stress the importance which it attaches to the effective application of these legal provisions.
    39. 39 In its report of 29 September 1976, the Government indicated that the state of emergency ".for the purposes of internal security" had been extended until 11 March 1977. According to the Government, this maintenance of the state of emergency constituted a measure to safeguard national security. Due to the country's geography and topography, it was vulnerable to inroads by extremists and because of recent events throughout the world more stringent safety measures were necessary. Moreover, added the Government, some Constitutional safeguards were not absolute and could be restricted for the common good, particularly under conditions of emergency. It was sometimes necessary to suspend certain of them or limit their exercise with a view to protecting the existence of other more important safeguards. In addition, claimed the Government, the country had to protect itself against latent subversion and the state of emergency constituted a protection for the entire population. The Government pointed out in this connection the importance of Constitutional Act No. 4, promulgated on 11 September 1976, which governed emergency measures in the event of external or internal warfare, internal disorder, latent subversion and public disasters.
    40. 40 The Government also referred to Constitutional Act No. 3 relating to human rights. The Act extended the habeas corpus ("amparo") procedure and created a new legal measure, referred to as "protective", which enabled any citizen in respect of whom Constitutional safeguards were violated or ignored to appeal by a rapid and expeditious procedure to the appropriate court of appeal to obtain the restoration of his rights provided that their nature so permitted. Furthermore, the Act recognised the right to life and physical integrity as well as equality before the law, prohibited all illegal constraint and guaranteed the right to legal defence and to judgement by a legally constituted court whose ruling would be based on previously established principles of law. In addition, standards were laid down regarding conditions of arrest and the safety of detainees. It was provided, in particular, that:
  • No person may be arrested or detained except by order of a public official expressly empowered by law and after this order has been notified in due legal form. However, anybody caught "in flagrante delicto" may be arrested for the sole purpose of being brought before the competent court within 24 hours;
• if the authorities arrest or detain a person, they shall notify the competent court within 48 hours and place the person concerned at its disposal. Giving the grounds for his decision, the judge may extend this limit to five days;
• no person may be arrested or detained, placed in preventive arrest or held prisoner other than in a building or in public premises reserved for this purpose.
  41. 41 The Constitutional Act also provides that "a person arrested is entitled to provisional release". The rights in respect of meetings, submission of petitions and association remain identical to those contained in the 1925 Constitution, except as regards the ban on compulsory membership of an association and the prohibition of associations prejudicial to moral standards, the public interest and state security. Concluding its comments on this point, the Government stated that all these facts show its continuing concern for the respect and protection of fundamental human rights.
  42. 42 As regards the protection of detainees, the Government stated that the Decrees adopted in January and February 1976 and mentioned in the 159th Report of the Committee, have been fully applied. The report refers in this connection to a visit to places of detention made by the Minister of Justice, the President of the Supreme Court and the Secretary-General of the Organisation of American States. The Government recalled that arrests made under the state of emergency regulations were of a preventive nature and not necessarily the result of an offence, neither did court action have to be taken. The Government added that it did not arrest anybody without sound reasons based on national security or the public interest. To maintain order and peace in Chile, it continued, it had been necessary to arrest a small number of persons (474) under the emergency regulations. It also stated that 205 persons arrested by virtue of the state of emergency had been unconditionally released on the orders of the President of the Republic.
  43. 43 The Committee notes with interest the adoption by the Government of Constitutional provisions protecting certain basin human rights. It also notes the release of a large number of detainees, including trade unionists. The Committee feels bound to express concern about the new allegations examined under Case No. 823, according to which trade unionists arrested by the security forces could not be found at the places of detention in the country. However, the Government has supplied information that some of these persons, said by the complainants to have been arrested, have left the country. The Committee recalls that it attaches great importance to the effective application of the Decrees promulgated in January and February 1976 concerning the protection of detainees, and particularly the provisions under which the authority deciding upon detention must supply the nearest relatives of the detainees with a copy of the arrest warrant, indicating by whom it was delivered, the official responsible for the arrest and the place to which the detainee will be taken.

The Committee's recommendations

1. 44. Under these conditions the Committee recommends the Governing Body:
   • (a) to note that, in accordance with the decision adopted by the Governing Body at its 200th Session (May-June 1976), the Government of Chile submitted a further report on 29 September 1976 relating to the evolution of the situation as regards the recommendations by the Fact-Finding and Conciliation Commission on Freedom of Association and the resolution concerning human and trade union rights in Chile, adopted by the Conference at its 60th Session (1975);
   • (b) to note the adoption of new Constitutional provisions concerning trade union rights, but to renew its appeal to the Government to promulgate as soon as possible new trade union legislation conforming fully with the recommendations made by the Fact-Finding and Conciliation Commission;
   • (c) to draw the attention of the Government to the principles and considerations with regard to collective bargaining set out in paragraph 22 above and to point out once again that an important objective of the Government should be to restore the practice of collective bargaining as soon as possible;
   • (d) to note with interest the winding up of the labour coordination Committees and to express the hope that the new administrative institutions and structures will make it possible to promote relations between the public authorities and employers' and workers' organisations, and between the latter;
   • (e) to deplore the lack of information from the Government on the conditions under which the Ranquil Confederation and the United Confederation of Workers and Peasants are undertaking their trade union activities and to request the Government once again to supply information on the situation with regard to these two organisations;
   • (f) to point out to the Government that it would be useful if it could take all possible measures to solve the difficulties encountered by the FIEMC and FENATEX in obtaining legal personality;
   • (g) to note with interest the adoption by the Government of Constitutional provisions protecting certain basic human rights;
   • (h) to recall the great importance which it attaches to the effective application of the Decrees of 20 January and 10 February 1976 concerning the protection of detainees;
   • (i) to request the Government to continue submitting information on the evolution of the situation with regard to the recommendations made by the Fact-Finding and Conciliation Commission and to submit a report on this subject by 1 April 1977.