Definitive Report - Report No 218, November 1982

Case No 1136 (Chile) - Complaint date: 18-MAY-82 - Closed

196. In communications dated 13 April, 10 May and 18 May 1982, the International Confederation of Free Trade Unions (ICFTU) presented complaints of violation of trade union rights in Chile. The Government supplied its observations in letters dated 13 and 22 September 1982.

1. 196. In communications dated 13 April, 10 May and 18 May 1982, the International Confederation of Free Trade Unions (ICFTU) presented complaints of violation of trade union rights in Chile. The Government supplied its observations in letters dated 13 and 22 September 1982.
2. 197. Chile has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
3. 198. Since all the complaints presented by the ICFTU relate to alleged violations of the right of assembly, the Committee has decided to examine the three cases jointly.

A. Allegations of the complainant

1. 199. In a telegram dated 13 April 1982 (Case No. 1126), the ICFTU states that a national consultative meeting which the National Trade Union Coordinating Committee had planned to hold on 16, 17 and 18 April 1982 at Punta de Tralca for the purpose of discussing trade union and social matters was prohibited by the Chilean authorities.
2. 200. Another telegram from the ICFTU of 10 May 1982 (Case No. 1137) states that the authorities forcibly prevented the National Trade Union Co-ordinating Committee from holding a trade union meeting on 7 May 1982.
3. 201. Lastly, in a letter of 18 May 1982 (Case No. 1136), the ICFTU refers to a meeting of Chilean trade union leaders organised by the National Association of Public Service Employees (ANEF) on 7 May 1982 at the Association's headquarters. According to the ICFTU, all of the country's political circles were aware of this meeting, and the leaders of legally constituted occupational organisations and trade unions intended to be present. The purpose of the meeting, the ICFTU states, was to attempt to unify Chilean social forces in seeking solutions to the serious social and economic problems affecting most of the country's population.
4. 202. On 7 May 1982, the Ministry of Justice, exercising the powers conferred on it by legislative Decrees Nos. 1183 of 1975, 2544 of 1979 and 3346 of 1980 and section 36 of Presidential Decree No. 110 of 1979, notified the ANEF leaders that it was not possible to hold the meeting scheduled. On the same day, officials of the Ministry of Justice and the Ministry of Labour, accompanied by members of the police force, went to the ANEF headquarters to announce that the meeting was prohibited.
5. 203. The ICFTU considers that these prohibitions constitute interference in the activities of trade union organisations and a violation of Convention No. 87 and of the rights of assembly and expression.

B. The Government's observations

1. 204. Regarding the consultative meeting which the National Trade Union Co-ordinating Committee wished to organise on 16, 17 and 18 April 1982 at Punta de Tralca, the Government states, in its communication of 13 September 1962, that the authorities did not prohibit or prevent that meeting. It was the organisers themselves who decided to call it off.
2. 205. Regarding the meeting of the National Trade Union Coordinating Committee scheduled for 7 May 1982, the Government states that the authorities responsible for ensuring law and order were not aware that that meeting had been prohibited. It is not true that a meeting of that body was prevented by force. The National Trade Union Co-ordinating Committee held a meeting on 7 July 1982, which was reported by several broadcasting stations. The Government states that the National Trade Union Co-ordinating Committee is a de facto body and as such is not entitled to represent workers.
3. 206. Concerning the prohibition of the ANEF meeting, the Government explains, first of all, that this organisation obtained legal personality under Presidential Decree No. 2161 of the Ministry of Justice dated 28 July 1964, pursuant to the provisions of the Civil Code (Title XXXIII of Book I). Its activities are governed by Supreme Decree No. 110 of 1979 concerning private law associations and foundations.
4. 207. The Government goes on to say that the ANEF therefore is a non-profit-making association governed by private law whose sole purpose, according to article 2 of its by-laws, is "the administrative, technical and cultural guidance and advancement of its members and the promotion of their social welfare". According to article 3 of the by-laws, "the ANEF's action shall be carried out in the social and cultural field and may not interfere directly or indirectly in political, religious or trade union activities". This prohibition, moreover, is provided for in section 6 of Decree No. 110 which provides that such associations may not pursue trade union or profit-making aims.
5. 208. The Government therefore regards the ANEF as a private law, mutualist association intended for improving the cultural level of its members, different from any other type of organisation governed by a legal status of its own, as is the case of trade union organisations.
6. 209. The Ministry of justice is responsible for supervising private law associations and foundations. In accordance with section 25 of Decree No. 110, such organisations must not be contrary to law, public order or morality and must pursue the aims for which they were established without infringing their by-laws. If such an organisation changes its statutory purposes or carries on activities contrary to law, public order or morality; the President of the Republic may withdraw its legal personality under section 25 of Decree No. 110 and section 559 of the civil Code.
7. 210. In the present case, the association in question seriously infringed its by-laws, the Civil Code and Decree No. 110 by calling a trade union meeting. In these circumstances, the Ministry of Justice would normally have had to enforce the law and proceed to annulling the ANEF's legal personality. However, it chose instead to notify it that the meeting scheduled could not be held and thus to prevent a wholly irregular situation contrary to the purposes and aims of the association and in violation of existing legislation and regulations.
8. 211. As for the complainant's allegation that Convention No. 87 has been violated, the Government recalls that it has not ratified that instrument and consequently cannot infringe a Convention which is not binding upon it. Paragraph 1 of Article 15 of the Convention provides that the Convention is binding only upon Members whose ratifications have been registered, and paragraph 3 of the same Article provides that it will come into force 12 months after the date on which its ratification has been registered.

C. The Committee's conclusions

1. 212. Before dealing with the substance of the case, the Committee considers it worth while to answer the objections raised by the Government on the ground that it has not ratified Convention No. 87. While fully aware that the Convention, consequently, is not binding on Chile, the Committee must recall that this country, on becoming a member of the ILO, undertook to respect certain principles, including the principle of freedom of association. As stated by the Committee, "the function of the International labour Organisation in regard to trade union rights is to contribute to the effectiveness of the general principle of freedom of association as one of the primary safeguards of peace and social justice". In fulfilling its responsibilities in the matter, the Committee also stated the Organisation must not hesitate to discuss in an international forum cases which are of such a character as to affect substantially the attainment of the ILO's aims and purposes as set forth in the Constitution of the Organisation, the Declaration of Philadelphia and the various Conventions concerning freedom of association. However, the Committee notes that the Government has largely co-operated by responding to the Organisation's requests for information.
2. 213. In the case in question, the allegations relate to infringements on three occasions of the right of assembly on the part of trade union organisations. Concerning two of the meetings, which had been called by the National Trade Union Co-ordinating Committee, the complainant's allegations and the Government's reply are completely contradictory since the Government denies that the meetings were prohibited. In these circumstances, the Committee can only recall generally that the right of assembly on the part of workers' organisations constitutes one of the fundamental elements of trade union rights.
3. 214. Concerning the meeting organised by the ANEF, an organisation grouping workers of the public sector, the Government explains its prohibition on the ground that this organisation, legally constituted as a private law association, is not entitled under the Civil Code to carry on trade union activities. The Committee would point out in this connection that the workers in the public sector have had to form this type of organisation precisely because section 166 of the public service regulations prohibits employees and workers in the government service to form trade unions. For years, however, the organisations set up by workers in the public sector, such as the ANEF, have been carrying on trade union activities. Moreover, this fact has been recognised by the Government itself since on several occasions ANEF leaders have formed part of the workers' delegation to the international labour Conference
4. 215. The Committee must note with concern, therefore, that not only has the Government failed to grant trade union rights to public employees as the Committee has repeatedly requested it to do but in addition it has, by prohibiting meetings organised by the ANEF, impaired the free exercise of the activities of this organisation, which up to now was able to carry on trade union activities. Consequently, the Committee wishes to draw the Government's attention to the fact that public employees should, like workers in the private sector, be able to establish organisations of their own choosing to promote and defend the interests of their members and that these organisations should be entitled to organise their activities and, in particular, to hold meetings without interference from the public authorities.

The Committee's recommendations

1. 216. In these circumstances, the Committee recommends the Governing Body to approve the following conclusions:
   • (a) The Committee recalls generally that the right of assembly on the part of workers' organisations constitutes one of the fundamental elements of trade union rights.
   • (b) Specifically concerning the prohibition of an ANEF meeting, the Committee draws the Government's attention to the fact that public employees should be able to establish organisations of their own choosing and that these organisations should be entitled to organise their activities and, in particular, to hold meetings without interference from the public authorities.