Informe provisional - Informe núm. 194, Junio 1979

Caso núm. 823 (Chile) - Fecha de presentación de la queja:: 12-AGO-75 - Cerrado

1. 134. The Committee last examined this case at its February 1979 Session, when it submitted an interim report to the Governing Body.
2. 135. 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).
3. 136. Since the Committee last examined the case, the Latin American Central of Workers (CLAT) has made allegations with regard to the removal from office of a trade union official in a telegram addressed to the ILO on 20 March 1979. In addition the following organisations have sent communications dated as indicated below concerning measures taken by the Government in connection with the celebration of May Day: International Confederation of Free Trade Unions (24 April 1979), World Confederation of Labour (24 April and 9 May 1979), World Federation of Trade Unions (25 April and 3 May 1979), Latin American Central of Workers (3 May 1979).
4. 137. The Government, for its part, has supplied the text of statements made by the Minister of Labour and certain information in communications dated 27 March and 9 May 1979. It has furnished its observations in communications dated 11 May and 21 May 1979.

A. Question of the adoption of new trade union legislation

1. 138. In a statement made on 2 January 1979, the minister of Labour made public the substance of the "Social Plan" setting out the Government's basic objectives and decisions regarding the establishment of a new institutional system for labour matters. The Government stated that the process of working out the ways and means of implementing this "Social Plan" had involved numerous meetings with workers' and employers' leaders.
2. 139. According to the Government, the principles underlying this "Social Plan" should lead to a system of trade unionism with the following characteristics:
   • - free trade unionism, meaning the right of the workers to act collectively through trade unions formed and organised according to the wishes of their members with no other restrictions than those established by law to ensure respect of the common good and the proper functions of the trade unions;
   • - democratic trade unionism, meaning the freedom of the members to appoint their executive organs and the guarantee that the latter act in conformity with the decisions taken by the members;
   • - trade unionism endowed with resources, meaning the obligation of the members to pay contributions to their organisation;
   • - independent and depoliticised trade unionism, which must exclude any use of the trade union organisation by groups or interests which were foreign to it, whatever their nature or origin.
3. 140. In presenting the general outline of this "Social Plan", the Minister indicated that the law respecting trade union organisations would be enacted before 30 June 1979. The Government subsequently announced the promulgation of two legislative decrees, one respecting the right of assembly and the other providing for the collection of union dues by a voluntary system of deduction at source.
4. 141. At its February-March 1979 Session, the Governing Body, on the Committee's recommendation:
   • (i) noted that the Pew trade union legislation was due to be adopted before 30 June 1979;
   • (ii) noted with interest that two legislative decrees covering organisations in every sector had been adopted to guarantee the right of trade unions to meet and to favour the collection of members' fees;
   • (iii) recalled to the Government's attention the recommendations formulated by the Fact-Finding and Conciliation Commission concerning the adoption of new trade union legislation;
   • (iv) expressed the firm hope that the Government would be able to provide all the necessary information for a thorough examination of the Bill and the measures envisaged for its application by the Committee at its next session.
5. 142. The Government recalls in its communication of 11 May 1979 that the objectives of the "Social Plan" are the strengthening of freedom, the promotion of justice and the establishment of a broad framework propitious to effective progress from which the entire population can benefit. It confirms that the law respecting trade union organisations will be promulgated not later than 30 June 1979. The guiding principles for the organisation and activities of trade unions as set out in this law will be the development of a free, democratic and independent trade union movement, endowed with its own resources.
6. 143. In the meantime, the Government has adopted two legislative decrees: one on the right of assembly of trade unions (Legislative Degree No. 2544, as amended by Legislative Decree No. 2620), and one on the financing of trade union organisations (Legislative Decree No. 2545). The Government states that by virtue of the two first mentioned of these legislative decrees Chile has officially guaranteed the freedom of trade union organisations to hold assemblies and meetings without hindrance of any kind. It recalls that Legislative Decree No. 2544 has repealed transitional section 4 of Legislative Decree No. 198 of 1973, thus recognising the freedom of trade unions, federations and Confederations to hold meetings outside working hours. Subsequently, Legislative Decree No. 2620, published in the official Gazette on 2 May 1979, has improved the text of the earlier measure, which lent itself to various interpretations as to the places where it was permissible to hold meetings. Under the new legislative decree, ordinary or extraordinary meetings of trade union organisations (unions, federations and Confederations) may be held at the headquarters of any such organisation, outside working hours, to deal with the affairs of that organisation. Thus, points out the Government, the legislation no longer provides for any restriction of the right of assembly. Moreover, this right has been exercised in practice by trade union organisations since 2 January last.
7. 144. With regard to the new trade union law, the Government gives the following explanations:
   • - it will recognise the right of workers to establish organisations of their own choosing, whether they be first degree trade unions, federations or Confederations;
   • - the preliminary draft of the new Political Constitution of the State, which will shortly be the subject of a referendum, provides that trade union organisations shall be granted legal personality subject to no other formality than the depositing of their Constitutions and rules with an independent body in accordance with a procedure to be prescribed by law;
   • - the new legislation will recognise freedom of assembly without supervision by the authorities, already widely exercised today;
   • - it will establish a procedure for the election, removal from office and replacement of union officials in full freedom and by secret ballot, without interference by the authorities or by extraneous elements;
   • - it will guarantee the freedom to run their own affairs and autonomy of organisations by making improvements in the law on trade union dues (Legislative Decree No. 2545) so as to enable trade unions to be financially independent. In this connection, the Government recalls that the laws and regulations presently in force provide for machinery for financial control by the general assembly and supervisory Committee of a trade union;
   • - it will provide for an appeal to lie with the courts of justice to settle any cases which may arise in connection with the dissolution of trade union organisations.
8. 145. In conclusion, the Government states that freedom to join the trade union of one's choice and freedom for each union to determine the amount of the dues to be paid by its members and to elect its officials are the main, necessary features on which the new law will be based. The Bill is now in the final stages of drafting and is still the subject of debate in the legislative bodies and consultation with the organisations concerned.
9. 146. The Committee takes note of the Government's statements as concerns the promulgation of the new trade union legislation, due to take place by 30 June 1979 at the latest. It notes with interest that in the meantime the Government has adopted a new legislative decree which amends the provisions adopted in February 1979 with respect to the right of assembly of trade union organisations in trade union premises and abolishes the requirement that the authorities be notified in advance which still subsisted in certain cases. However, the Committee must point out that trade unions ought to have the right to freely organise meetings either in trade union premises or in other appropriate premises.
10. 147. The Committee has examined the guiding principles for the new trade union legislation. It notes with interest that, as communicated to the Committee, they appear to have taken account to a large extent of the principles mentioned by the Fact-Finding and Conciliation Commission in its recommendations with regard to the adoption of new trade union legislation. Nevertheless, the Committee must point out once again that it cannot express its views as to the conformity of the new legislation with the principles of freedom of association until it has at its disposal all the necessary information, and in particular the full text of the new provisions. In this connection it must express its deep regret that the Government has not found it possible to supply the text of the Bill before it becomes law. In these circumstances, the Committee can only urge the Government to take all the necessary measures so that the new legislation will be adopted before 30 June next and will contain provisions complying with the recommendations of the Fact-Finding and Conciliation Commission and that the text will be sent promptly to the Committee so that it can evaluate its conformity with the principles of freedom of association. The Committee further considers it desirable to insist once again on the need for the bringing into force, speedily and fully, of legislation complying with the recommendations of the Fact-Finding and Conciliation Commission so as to put an end to all the restrictions on trade unions which have now been in force for nearly six years.

B. Collective bargaining

1. 148. In presenting the Government's "Social Plan" at the beginning of January 1979, the Minister of Labour stated that what had to be aimed for was a system of collective bargaining which would be:
   • - effective and just, which would suggest that it be conducted within each undertaking;
   • - technical, which would require that both parties negotiate with full knowledge of the relevant factors involved and with the aid of any technical assistance required;
   • - responsible and integrated, which could only be achieved within the framework of conciliation procedures. According to the minister, striking could not be legally accepted when it affected services in the public interest or when a work stoppage seriously impaired the populations' health or food supplies, the country's economy or national security. On the other hand, in cases where the State or the population was not vitally affected, there was nothing preventing the possibility of occupational strikes and lock-outs.
2. 149. The Minister of Labour further pointed out that his statements on collective bargaining did not concern employees of the State and municipalities. Finally, he indicated that the legislation respecting collective bargaining would enter into force before 30 June 1979.
3. 150. At its February 1979 session, the Committee noted with interest that the procedure of compulsory arbitration would not be applied to all collective labour disputes. It pointed out, however, that the law should not stand in the way of the participation of federations and Confederations in voluntary collective negotiations concerning conditions of work. In drawing the Government's attention to these principles and considerations, the Governing Body expressed the hope that collective bargaining would be restored in the very near future.
4. 151. In its communication of 11 may 1979, the Government confirms that the law on collective bargaining will be promulgated before 30 June 1979. It recalls that its aim is to provide workers and employers with negotiating machinery which will be efficient, fair, technically competent and responsible. The "Social Plan" recognises the right of workers to associate for the collective negotiation of their rates of pay so that these may be consistent with the productivity of the sector of the undertaking concerned. This implies that, for both employers and workers, collective bargaining should take place within each undertaking. This is not a hard-and-fast rule, as special circumstances justifying its waiving may arise in activities where the labour force is exceptionally mobile.
5. 152. As concerns the Committee's recommendation to the effect that "the law should not stand in the way of the participation of federations and Confederations in voluntary collective negotiations concerning conditions of work", the Government states that the new legislation does not preclude such participation. On the contrary, it recognises in broad and clear terms the role of federations and Confederations. These organisations are in effect in a better position to carry out certain tasks of interest to workers employed in different undertakings in a given branch of activity. They may also be of great value in training officials of first-degree unions and assisting them prior to or during negotiations.
6. 153. The Government points out that in the interest of consumers, it must ensure that in certain sectors a few workers' or employers' organisations do not acquire monopolistic powers enabling them to secure excessively advantageous pay rates or privileges. According to the Government, in certain sectors there is in fact a tendency towards collusion between employers' and workers' associations with a view to reaching settlements which are mutually advantageous. However, these settlements are not based on an improvement in productivity and are thus detrimental to consumers as they result in higher prices. The Government goes on to state that it is accordingly necessary to make the laws against monopolies of either workers or employers more severe.
7. 154. The Committee notes that collective bargaining at the undertaking level - a system traditionally used in Chile and sanctioned by the Labour Code formerly in force, - will be re-established under new legislation on the subject. The Committee is of the opinion that the reintroduction of collective bargaining is an important step forward in the restoration of trade union freedoms.
8. 155. The Committee notes that federations and Confederations will be allowed to give advice and assistance in connection with collective bargaining, and that it will be permissible for such higher-degree organisations, in certain cases, to negotiate directly the conditions of employment of their constituents. The Committee further notes that the general rule it is intended to observe in establishing the legal framework for collective bargaining at the undertaking level reflects the desire to prevent the creation of monopolies either on the employers' or on the workers' side. In this connection, the Committee wishes to draw attention to the importance of the principle that voluntary negotiation of collective agreements between employers' and workers' organisations should be promoted. The Committee observes that the system of collective bargaining provided for would result in practice in negotiations between individual employers and unions at the undertaking level, excluding employers' organisations and higher-degree workers' organisations. In these circumstances, the Committee is of the opinion that, to prevent all these organisations from being debarred a priori from taking part in collective bargaining, the combating of possible abuses that might result from the creation of a monopoly should be left to the judicial authorities.

C. Measures affecting trade union officials and organisations

• (a) Removal from office and dismissal of trade union officials
  156. 156 At its last session the Committee examined complaints concerning the removal from office or dismissal of several trade union officials. Since then the CLAT has alleged that on 8 March 1979, the authorities removed from office the President of the National Association of Customs Employees at Valparaiso, Daniel Lillo.
  157. 157 With regard to this allegation, the Government states that this removal from office was ordered by the Regional Governor (Intendente) of the Valparaiso Region in pursuance of Legislative Decree No. 349 of 1974. In the opinion of the Governor, Mr. Lillo had given the press an untrue account of a meeting at which he had not been present. Mr. Lillo subsequently admitted that he had made statements based on suppositions. The Government points out that the customs authorities are now carrying out an administrative inquiry, with the force of law, in accordance with Decree No. 338 of 1960, to establish the administrative liability of the person in question. The Government states that the Ministers of the Interior and Finance have not acted upon the request made by the Governor of Valparaiso for the application of Legislative Decrees Nos. 966 and 2345 concerning "the stabilisation of the economy and the debureaucratisation of the Public Administration".
  158. 158 The Committee notes that removal from office of Mr. Daniel Lillo was decided upon by the Governor of Valparaiso in pursuance of Legislative Decree No. 349 of 1974. This legislative decree, as subsequently amended, authorises regional and local governors to demand the resignation of members of the executive Committee of an organisation of workers in the public sector on the ground that serious impediments prevent that organisation from functioning, and to appoint replacements. Where such an official fails to tender his resignation within the specified time limit, the governor may publish an order removing him from office as an official of the organisation. In this connection, the Committee wishes to emphasise that it is essential that measures for the removal of a trade union official from office should be left to the discretion of the organisation itself, in accordance with its rules, and that measures for disqualification on legal grounds should not become enforceable except on the basis of judicial procedures guaranteeing the right of defence and an impartial examination of the matter enabling due account to be taken of the right of organisations to elect their representatives in full freedom.
  159. 159 The Committee further notes that the customs authorities are carrying out an administrative inquiry into the case of Mr. Lillo. It considers that it would be useful for it to be informed of the results of this inquiry.
• (b) Dissolution of several trade union organisations
  160. 160 Allegations were presented by several complainant organisations concerning the dissolution by the Government of certain trade union organisations in October 1978. The Committee took note of the provisions of Legislative Decree No. 2346 of 17 October 1978, concerning the dissolution of seven trade union organisations. In setting out the reasons for its promulgation the Decree stated, in the first place, that it was the duty of the State to ensure that "intermediate institutions" acted within the limits of their competence, and to protect citizens against activities which might lead, directly or indirectly, to the development of social strife or subversive doctrines that were contrary to the general interest. Secondly, it was stated that the conduct of those organisations mentioned in the legislative decree showed that their means of action or their objects coincided with Marxist principles or objectives. For this reason, the Decree continued, these organisations had seriously and persistently distorted the nature of their functions to such a point that their existence and their functioning were incompatible with the necessity to safeguard national unity.
  161. 161 Accordingly, the following organisations were prohibited and considered as illegal organisations: the Ranquil Confederation, the United Confederation of Peasants and Workers, the National Federation of Metallurgical Unions, the Occupational Union of Construction Workers of Santiago, the National Union of Textile and Clothing Workers, the Industrial Federation of Building, Wood and Construction Workers and the National Industrial Federation of Mineworkers. These organisations were dissolved and their legal personality, where appropriate, removed. The Legislative Decree specified moreover that the same applied to their affiliate organisations (section 3). Finally, the assets of the dissolved organisations were transferred to the State (section 4).
  162. 162 The Government subsequently stated that all the organisations concerned had lodged a Constitutional appeal for protection before the Santiago Court of Appeal and that, as a result, the matter was pending in the civil courts. The Government added that, in accordance with the law, the assets belonging to the dissolved organisations had been listed by the Ministry of Public Property and would be destined for the organised workers themselves if the Court denied the appeals for protection. The Government also pointed out that the organisations affiliated to the dissolved groups had not been touched by the dissolution measures.
  163. 163 At its February-March 1979 session the Governing Body, on the Committee's recommendation, noted that an appeal had been lodged by these organisations in the courts, and requested the Government to provide information on the results of these judicial proceedings and on the subsequent allocation of the assets of the dissolved organisations.
  164. 164 The Government states that this matter is still pending before the competent court. In the meantime the court has requested reports from the Ministries of Public Property and the Interior. The assets of the organisations concerned have been carefully inventoried. The final assignation of these assets will in any event be effected in such a way as to be to the workers' advantage.
  165. 165 The Committee notes that the appeal lodged by the seven dissolved organisations is still pending before the courts. In these circumstances, the Committee wishes to repeat its request for information as to the outcome of the legal proceedings initiated and the ultimate destination of the assets of the dissolved organisations.

D. Incidents on May Day

1. 166. In their communications, the ICFTU, the WCL, the WFTU and the CLAT refer to the ban on May Day celebrations imposed by the Government. The complaining organisations state that when the police intervened during demonstrations in Santiago, people were injured and more than 300 were arrested. In Valparaiso, too, more than 40 workers were arrested.
2. 167. The complainants also state that the international trade union Confederations and several of their affiliates had sent delegations to manifest their solidarity with the Chilean workers. The delegates from the CLAT and from a number of Spanish Confederations were refused entry on their arrival in Chile.
3. 168. The Government remarks that on 1 May the legislation on the freedom of assembly of trade union organisations was already in force. The Minister of Labour had publicly stated that the workers could celebrate Labour Day at meetings of their organisations. The Minister of the Interior, for his part, refused to authorise a meeting in the streets that a group of persons including several trade union leaders had expressed the wish to organise. This meeting had been described as an "artistic and cultural gathering". However, owing to the political nature of statements made by the organisers, the Government considered that it was its duty not to authorise such a gathering, in accordance with the provisions concerning the keeping of the peace.
4. 169. The Government points out that in Chile authorisation has always been required for the holding of peaceful gatherings in public places. Certain leaders had accordingly stated that if they did not obtain authorisation to hold the meeting they would not participate in any action in breach of the traditional standards of public order. However, another group preferred to exploit May Day for political purposes, called for the breaking off of the dialogue with the Government and provoked the authorities into refusing permission for the meeting. This group organised a rally of 500 persons.
5. 170. The disturbances which followed, and in particular the physical assaults upon the police, led to the arrest of 365 persons, including 163 students, 89 white-collar workers and technicians, 9 housewives, 29 self-employed persons, 26 persons without any known occupation and 49 wage earners. No trade union officials were arrested. Fifty-two persons were prosecuted (12 for assaults on policemen and 40 for breaches of the State Security Act). All the others were released by order of the judicial authorities.
6. 171. The Government remarks that at that very moment the labour authorities were meeting with 3,500 trade union officials to analyse the most important features of the new laws to be adopted shortly.
7. 172. In conclusion, the Government states that it is untrue to assert that it banned the celebrating of May Day. Far to the contrary, it reminded trade unions that they were absolutely free to hold meetings all over the country to commemorate this important date.
8. 173. In its communication of 21 May 1979, the Government states that the 40 persons remaining in custody have been released by decision of the Court of Appeal of Santiago, against which the Government will not appeal.
9. 174. The Committee notes that the persons arrested during the May Day demonstrations have now all been released. It nevertheless wishes to emphasise, as it has done on countless occasions, and in particular in connection with the present case, that the right to organise public meetings and processions on May Day constitutes an important aspect of trade union rights, provided the legal provisions on public order are observed. The Committee further draws attention to the fact that the Government has not furnished observations on the allegations concerning the expulsion of foreign trade unionists who had come to celebrate May Day in Chile. Although governments have a sovereign right to decide who shall and who shall not be admitted to their territory in accordance with the legislation applicable to aliens in general, the Committee wishes nevertheless to stress the importance it attaches to the right of national trade unions to maintain relations with occupational organisations in other countries and international Confederations.

E. Civil liberties relevant to the exercise of trade union rights

1. 175. At various stages in the examination of this case, the Committee has examined allegations concerning the detention or disappearance of trade unionists or former trade unionists. In a report examined by the Committee in November 1978, the Government provided information on 24 of the 67 persons mentioned in the list established by the Committee in its 177th Report. In February 1979, the Government stated that there were no trade unionists detained in Chile. At that time the Governing Body, on the Committee's recommendation, requested the Government to continue to supply information on the persons mentioned in the 177th Report, and in particular on the results of the efforts made to trace missing persons.
2. 176. In this connection the Government states that on 21 March 1979, the Supreme Court instructed the Court of Appeal of Santiago to appoint one of its judges to undertake a special mission to investigate and pronounce decisions on cases of persons presumed missing still pending in the courts within its jurisdiction. These cases involve, inter alia, the following persons: José Luis Baeza, Carlos Contreras Maluje, Héctor Manuel Contreras, José Corvalán, Juan Elias Cortez, Uldarico Donaire, Jaime Patricio Donato, Humberto Fuentes, Mario Jesús Juica, Guillermo Gálvez, Fernando Lara, Guillermo Martinet, Juan Moraga, Miguel Morales, Miguel Nazal, Rodolfo Marcial Nuñez, Luis Recabarren G, Manuel Recabarren R, Raimundo Riquelme, Jorge Salgado, José Santander, Pedro Silva Bustos, Jorge Solovera, José Toloza, Julio Roberto Vega, Carlos Vizcarra, José Arturo Weibel, Ricardo Weibel, Juan Gianelli, Carlos Lorca Tobar, Exequiel Ponce, José Sagredo Pacheco, Fernando Navarro, Waldo Pizarro and Fernando Ortiz. The Supreme Court has issued the same instruction to the Court of Appeal of Talca with respect to the case of Luis Eduardo Vega Ramirez. The Government will communicate the results of the proceedings pending in due course.
3. 177. The Committee notes that judges of the courts of appeal of Santiago and, Talca are investigating the cases of missing persons, most of whom have been mentioned in the complaints before the Committee it once again requests the Government to continue to supply information as to the results of the efforts made to trace these persons, and, in general, on the persons mentioned in the list included by the Committee in its 177th Report.

The Committee's recommendations

1. 178. In these circumstances, the Committee recommends the Governing Body:
   • (a) with regard to the adoption of new trade union legislation:
   • (i) to note with interest that the guiding principles announced by the Government in preparing the new trade union legislation took account of the principles set out in the recommendations of the Fact-Finding and Conciliation Commission;
   • (ii) to express its regret that the Government has not found it possible to supply the text of the Bill before it becomes law;
   • (iii) to urge the Government to take all the necessary measures so that the provisions of the new legislation will comply with the recommendations of the Fact-Finding and Conciliation Commission and so that they will be adopted as soon as possible, and that the text will be sent promptly to the Committee so that it can evaluate their conformity with the principles of freedom of association.
   • (iv) to insist on the need for this legislation to be brought into force speedily and fully so as to put an end to the restrictions on trade unions;
   • (b) as regards the right to hold meetings;
   • (i) to note with interest the adoption of Legislative Decree No. 2620 to supplement Legislative Decree No. 2544 as concerns the right to hold meetings in trade union premises, without previous authorisation;
   • (ii) however, to point out that trade unions ought to have the right to freely organise meetings either in trade union premises or in other appropriate premises;
   • (c) with regard to collective bargaining:
   • (i) to note that the Government confirms that the new law on the subject will be promulgated not later than 30 June 1979;
   • (ii) to draw the Government's attention to the principles and considerations set forth in paragraphs 154 and 155 above as concerns the level at which collective bargaining would take place;
   • (d) with regard to the removal from office of on Lillo:
   • (i) to draw the Government's attention to the principles and considerations set forth in paragraph 158 above as concerns measures for the removal from office of trade union officials;
   • (ii) to request the Government to supply information as to the results of the administrative inquiry carried out by the customs authorities;
   • (e) with regard to the dissolution of several trade union organisations, to request the Government to supply information as to the outcome of the appeals pending in the courts and as to the ultimate destination of the assets of the dissolved organisations;
   • (f) with regard to the incidents which occurred on May Day 1979:
   • (i) to note that all the persons arrested are now at liberty;
   • (ii) to recall that the right to organise public meetings and processions on May Day constitutes an important aspect of trade union rights, provided the legal provisions on public order are observed;
   • (iii) to stress the importance of the right of national trade unions to maintain relations with occupational organisations in other countries and international Confederations;
   • (g) with regard to the detention or disappearance of serving or former trade union officials, to note that judges of the courts of appeal of Santiago and Talca have been instructed to investigate the cases of missing persons, including many trade unionists, and to request the Government to continue to supply information as to the results of the proceedings pending and, in general, on the persons mentioned in the list included by the Committee in its 177th report;
   • (h) to take note of this interim report.