Report in which the committee requests to be kept informed of development - Report No 211, November 1981

Case No 1028 (Chile) - Complaint date: 10-FEB-81 - Closed

1. 276. In a communication dated 10 February 1981, the National Trade Union Confederation of Workers in the Construction, Timber, Building Materials and Allied industries presented a complaint alleging the infringement of trade union rights by the Government of Chile. The Government sent its observations in a communication dated 27 August 1981.
2. 277. 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. The complainant's allegations

1. 278. The complainant organisation refers to the dismissal by the Labour Directorate of the Ministry of Labour and Social Welfare of four of its national leaders, namely Messrs. Hector Cuevas Salvador, Chairman; Sergio Troncoso Cisternas; Hector Solis Saavedra, the officer responsible for industrial relations; and Edelmiro Aravena Lastra, the officer responsible for social welfare.
2. 279. In an appendix to its communication, the complainant organisation includes various documents in support of its complaint, in particular its charter, Resolution No. 41 of the Labour Directorate promulgated on 2 February 1981 respecting the declaration of the legal incapacity of the four leaders of the Confederation as well as the appeal lodged by the complainant organisation with the labour courts.
3. 280. It appears from these various documents that the complainant organisation, which comprises 23 trade unions from different parts of the country, was established on 7 November 1980 in the presence of a witness on oath. During this meeting, a board of management composed of 21 members was elected in accordance with the regulations. The charter and the statutes of the organisation, as well as the list of its leaders, were registered in accordance with the law with the Santiago provincial Labour Inspectorate on 14 November 1980.
4. 281. On examining these documents, the Labour Directorate discovered that the constituent organisations of the Confederation included two first-degree trade unions from the Greater Santiago area which had been dissolved in 1978 as a result of their affiliation to another organisation which itself had been dissolved by Legislative Decree No. 2346 of October 1978, the former Industrial Federation of Building, Wood and Construction Workers. As a result of this situation, these two trade unions did not, in the view of the Labour Directorate, enjoy legal personality and their representatives could not therefore sit on the Confederation and in particular on its executive bodies. The Labour Directorate therefore issued a resolution which dismissed the four leaders who represented these two trade unions and had been elected to the steering Committee of the federation and ordered them to cease exercising their functions immediately.
5. 282. The complainant organisation considers that the resolution of the Labour Directorate was an arbitrary decision totally devoid of any legal basis. It points out in particular that the leaders concerned were not given the opportunity to express their views and were thus unable to state their case. As regards the situation of the two trade unions affected by the declaration of legal incapacity, the complainant organisation points out that one of the trade unions had enjoyed legal personality since 1940 and the other since 1955. After the adoption of new trade union legislation in Chile in 1979, the two organisations in question amended their statutes accordingly and held new elections. The two unions subsequently received documents on several occasions in 1979 and 1980 from the Labour Directorate which accredit their legal status.
6. 283. As regards the motive for the alleged dissolution of these two trade unions, namely their affiliation to an organisation which itself had been dissolved, the former Industrial Federation of Building, Wood and Construction Workers, the complainant recognises that section 3 of the legislative decree concerning the dissolution also applied to the organisations which were affiliated to the Federation. It points out, however, that shortly after this Federation had been dissolved, the Labour Directorate declared that the affiliated organisations were to retain their legal personality until the Ministry of the Interior had drawn up a detailed list of the organisations concerned. For its part, the Ministry of the Interior had also stated that only federations had been dissolved and that the Ministry would specify subsequently what effects these dissolutions would have on the member organisations. The complainant organisation therefore believes that the Labour Directorate was not legally competent to issue a decision on the legal existence of the two trade unions in question. As a consequence, it has made an application to the labour courts requesting the annulment of the declaration of legal incapacity issued by the Labour Directorate.

B. The Government's reply

1. 284. The Government states firstly that the new Chilean trade union legislation of 1979 (Legislative Decree No. 2756) grants trade unions the right to establish federations and Confederations and to affiliate to such organisations provided that the latter have been established in accordance with the law or have made the necessary amendments for this purpose. It points out that the exercise of freedom of association is guaranteed under the law to all trade unions, but that on the contrary non-trade union bodies such as de facto organisations which do not enjoy legal personality are not entitled to exercise trade union rights.
2. 285. As regards the boards of management of federations and Confederations, the law requires that their members are leaders of an affiliated organisation (section 66 of Legislative Decree No. 2756). The Government points out that the persons who were dismissed in February 1981 represented de facto organisations which did not enjoy the status of trade union organisations as required by the law since the organisations in question had been dissolved by Legislative Decree in October 1978. Since these organisations did not legally exist, they were not entitled to participate in the establishment of a trade union organisation of a federative nature. Consequently, its representatives did not possess the legal status of trade union leaders since they did not fulfil the requirements established by section 66 of the above-mentioned Legislative Decree. The Labour Directorate was therefore obliged to adopt a resolution declaring that the persons concerned were not legally authorised to exercise a trade union function.
3. 286. In conclusion, the Government points out that section 23 of Legislative Decree No. 2756 grants the right to appeal against resolutions of the administrative authorities declaring the legal incapacity or incompatibility to exercise trade union functions and that this right is exercised in the civil courts. The case in question is currently before the Santiago civil court. The Government states that once the court has delivered its judgement, it will be transmitted to the Committee.

C. The Committee's conclusions

1. 287. The present case concerns the declaration by the Labour Directorate of the legal incapacity of four persons who had been elected in November 1980 as leaders of the National Trade Union Confederation of Workers in the Construction, Timber, Building Materials and Allied Industries. This declaration of legal incapacity was based upon the fact that the persons concerned did not fulfil all the requirements established by the law for persons to be elected as trade union leaders since they represented first degree trade unions which in the view of the Government, had been dissolved at an earlier date and which therefore did not enjoy any legal existence. The persons in question could not therefore be considered as the leaders of an affiliated organisation and consequently could not be elected to the executive bodies of the Confederation. In the view of the complainant, the declaration of legal incapacity was an arbitrary measure since the authorities themselves had recognised the legal existence of the trade unions concerned in various documents.
2. 288. As regards the motive for the decision to declare legal incapacity - i.e. the dissolution of the former Industrial Federation of Building wood and Construction Workers which according to the Government resulted in the dissolution of its affiliated organisations and, therefore, of the two trade unions of which the leaders in question were members - the Committee notes that this case of dissolution had already been the subject of a complaint which it had examined on several occasions. The Committee had noted that the procedure followed in this case was not compatible with the principles of freedom of association since the dissolution had been made by administrative authority. Furthermore, the Government had stated at the time in connection with this Case that the organisations affiliated to the dissolved groups were not concerned by the dissolution measures. The reasons now invoked for the annulment of the election of trade union leaders of the building Confederation thus seem to contradict the previous statements of the Government concerning the legal existence of the first-degree trade unions in question.
3. 289. In addition to the ambiguous nature of the motives thus put forward the Committee must point out that the declaration of legal incapacity in question was made by an administrative authority, namely the Labour Directorate, and that it came into force immediately after its adoption. In this respect, the Committee considers it necessary to recall, as it has done on many occasions, the importance of the principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom. The Committee believes that in order to prevent such interference, measures for the dismissal, suspension or disqualification of trade union officials should not become enforceable except on the basis of a sentence on the part of the competent judicial authority or, in any case, after the period allowed for the submission of an appeal has elapsed.
4. 290. Finally, the Committee notes that the case has now been placed before the civil courts and that the Government will transmit the results of the proceedings when the court has made its decision.

The Committee's recommendations

1. 291. In these circumstances' the Committee recommends the Governing Body to approve the following conclusions:
   • Noting that the disqualification of the four trade union leaders referred to in the complaint was made by administrative authority, the Committee recalls that measures for the dismissal, suspension or disqualification of trade union leaders should not become enforceable except or the basis of a sentence by the competent judicial authority or, in any case after the period allowed for the submission of an appeal has elapsed. The Committee therefore considers that the measure taken by the Labour Directorate did not comply with the principles of freedom of association.
   • The Committee notes that the case has now been placed before the civil courts and that the Government will transmit the results of the proceedings when the court has delivered its decision.