Definitive Report - Report No 218, November 1982

Case No 1144 (Chile) - Complaint date: 01-JUL-82 - Closed

1. 217. In a communication dated 1 July 1982, the National Confederation of Trade Unions of Workers in the Building, Wood, Construction and Allied industries presented a complaint of infringement of trade union rights in Chile, which was also signed by the Chairman of Workers' Union No. 1 of the international Construction Co. Ltd. Chile and Workers' Union No. 1 of the Gordo Atkinson and Co. enterprise. The Government supplied its observations in a letter dated 22 September 1982,
2. 218. 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).

A. The complainant's allegations

1. 219. The complainant alleges that the transnational enterprise International Construction Co. Ltd. Chile, in collusion with the directorate of the Ministry of Labour, deprived the 1,800 workers of the Colbún Machicura hydro-electric complex of the right to collective bargaining. The complainant furnishes two enclosures with its communication: resolution No. 297, adopted by the labour directorate in the dispute between the workers and the enterprise, and the text of the appeal which they submitted to the Santiago Court of Appeal.
2. 220. According to these documents, on 25 May 1982 the bargaining Committee appointed by the workers of the enterprise submitted a draft collective labour agreement to the employer with a view to initiating a collective bargaining procedure.
3. 221. On 7 June 1982, the enterprise gave its reply on the draft agreement, formulating several objections and observations, particularly with regard to the fact that the draft text claimed to include workers who were not legally entitled to be covered by a collective agreement, as Legislative Decree No. 2758 on collective bargaining does not apply to workers hired for temporary work. The reason for this objection was that the workers in question had been hired to perform temporary work, as the maximum duration of the project was until 1 August 1985. The employer also stated that the work was divided into various tasks which were performed simultaneously or successively within a fixed period and in different places, so that the workers were actually employed for three or six months or more, but always within the maximum period ending on 1 August 1985.
4. 222. On 13 June 1982, the five members of the bargaining Committee submitted an appeal to the labour directorate concerning the reply of the enterprise. They explained in their complaint that the employer had referred to only some of the workers covered by negotiations without specifying who, in its opinion, would be affected by the ban on bargaining. The members of the bargaining Committee considered that this omission constituted sufficient grounds to reject the observation made by the enterprise. They also pointed out that while the majority of the workers covered by the collective bargaining had 30-day contracts, it was none the less true that they continued to provide their services for an unlimited period once the term had expired. The members of the bargaining Committee stated further that their work consisted of civil engineering tasks, not building work, as the employer maintained. The members of the bargaining Committee concluded in their appeal that the aim of the enterprise was to avoid bargaining, and thus to evade the provisions of Legislative Decree No. 2758.
5. 223. On 18 June 1982 the labour directorate, in a resolution No. 297, while accepting some of the claims submitted by the bargaining Committee concerning the capacity of its members to represent the workers and the validity of the signatures to the draft collective agreement, rejected the appeal concerning the non-entitlement of the workers involved to take part in collective bargaining. The labour directorate considered that these workers had indeed been taken on exclusively for a specific temporary job.
6. 224. The members of the bargaining Committee considered that this decision of the labour directorate was based on two false assumptions, namely that all construction work is of temporary duration and that all persons engaged in such work are building workers.

B. The Governments reply

1. 225. After recalling the events referred to in the complaint, the Government upholds the labour directorate's view that the work performed in building the Colbún Machicura hydro-electric station is of temporary duration. It points out in this respect that in trade union legislation (Legislative Decree No. 2756, section 5), building work is described as temporary work. In describing building work as temporary, continues the Government, the law does not, however, deny the right of collective bargaining to all building workers. The Government specifies further that if workers have not been engaged exclusively for a specified project or job, or if these projects and jobs are not temporary, then the workers are entitled to bargain collectively.
2. 226. The Government points out that, in the present case, the workers were taken on to provide their services on a particular site, the Colbún hydro-electric project in Linares Province. The contracts do not become permanent since the work is by its very nature temporary. Therefore, under the terms of section 5 of Legislative Decree No. 2758, these workers may not bargain collectively.
3. 227. The Government points out that the members of the bargaining Committee, following the unfavourable decision of the labour directorate, had brought an appeal for protection before the Santiago Court of Appeal against the labour directorate for the illegality of resolution No. 297 and for its improper and arbitrary decision. On 15 July 1982 the Court of Appeal declared the appeal irreceivable after hearing the lawyers of both parties, as the Constitution does not provide for appeals of protection in matters related to collective bargaining.
4. 228. The members of the bargaining Committee then submitted a second appeal on 22 July 1982 to the Supreme Court, which upheld the decision of the Court of Appeal on 3 August 1982.
5. 229. The Government concludes that it is clear from the elements of the case that there has been no infringement of freedom of association, the workers having had access to defence and to the highest court of justice in the country.

C. The Committee's conclusions

1. 230. The allegations presented in the present case concern denial of the right of collective bargaining to workers engaged for construction work on a hydro-electric complex. In accordance with Legislative Decree No. 2758 on collective bargaining, the workers had elected a bargaining Committee, which had submitted a draft collective agreement to the employer. The latter, as entitled by law, made objections, primarily on the grounds that the draft text included in its scope workers who, under the terms of Legislative Decree No. 2758, could not be covered by collective agreements, as they were employed on a temporary basis. The bargaining Committee, considering that these objections by the enterprise would result in 1,800 workers being deprived of the right of collective bargaining, had then submitted an appeal to the labour directorate, stating in particular that the workers in question had in fact been engaged on the construction site for an unspecified period. The labour directorate rejected the argument, noting that in this case the work was by its very nature temporary. Subsequent appeals brought by the members of the bargaining Committee before the Court of Appeal and the Supreme Court failed to obtain recognition of the right of collective bargaining for the workers in involved.
2. 231. The question at issue in the present case is thus whether workers engaged on the construction site of a hydro-electric complex should enjoy the right to collective bargaining. In this respect, the Committee on Freedom of Association has always considered that the right of free collective bargaining is a fundamental trade union right for all employees not covered by the safeguards provided by civil service regulations. The International Labour Conference itself decided that the Collective Bargaining Convention, 1981 (No. 154), should be applied in all branches of economic activity, with the sole possible exception of the armed forces and police. In the Committee's opinion, there should therefore be no obstacles to collective bargaining in the building sector.
3. 232. As regards the argument put forward by the Government that the workers concerned were engaged for a limited period, the Committee points out that in fact the planned duration of the project was to be until 1 August 1985. The remaining period (over three years until completion of the hydro-electric complex) was thus amply sufficient for a collective agreement to regulate the working conditions of employees on this construction site. In addition, the Committee considers that, in view of the nature of the building sector, where a large number of workers are engaged for the duration of a single project, to deny the right of collective bargaining to temporary workers amounts to depriving virtually a whole sector of this right, which is contrary to the principle of freedom of association. The Committee therefore expresses the hope that the Government will take the necessary measures to amend the legislation with a view to granting the right of collective bargaining to these workers.

The Committee's recommendations

1. 233. In these circumstances, the Committee recommends the Governing Body to approve the present report, and in particular the following conclusions:
   • (a) the Committee recalls that the right to free collective bargaining should apply to all branches of economic activity, with the sole possible exception of the armed forces and police;
   • (b) the Committee therefore expresses the hope that the Government will take the necessary measures to amend the legislation with a view to granting the right of collective bargaining to workers on fixed-term contracts in the building sector.