Rapport intérimaire - Rapport No. 83, 1965

Cas no 271 (Chili) - Date de la plainte: 25-AOÛT -61 - Clos

1. 112. The Committee last examined this case in full at its meeting in May 1963, when it submitted an interim report in paragraphs 175 to 208 of its 70th Report, which was approved by the Governing Body at its 155th Session (May-June 1963).
2. 113. 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. 114. When it made the above-mentioned interim report the Committee recalled the terms of the complaint and the Government's reply, which contained details of the court proceedings arising out of the dismissal of a trade union official, Enrique Sánchez Ossandón.

A. A. The complainants' allegations

1. 115. The complainants allege that Mr. Enrique Sánchez Ossandón, present Chairman of the Chilean Confederation of Industrial and Commercial Workers and a member of the Central Mixed Wages Commission, who was employed by Madeco S.A. (a copper-manufacturing company), was dismissed from that undertaking for having attended the 45th Session of the International Labour Conference, held in Geneva in June 1961. The complainants add that Mr. Sánchez Ossandón was appointed technical adviser to the workers under Decree No. 412 of 2 June 1961; that on the same day he informed Madeco of his appointment, sent a copy of the communication to the Labour Inspectorate and asked the Ministry of Labour to notify Madeco of the appointment, which was done on 5 June by official letter No. 425; that Madeco, in its reply of 9 June 1961 to official letter No. 425, stated that the company reserved all the necessary rights in regard to the situation created by Mr. Sánchez Ossandón through having absented himself from his work without previous permission. The complainants enclosed with their complaint a copy of the said Decree No. 412, of the letters dated 2 and 9 June 1961 and of official letter No. 425 of 5 June 1961. When Mr. Sánchez Ossandón returned to Chile and reported to the Madeco Company to resume his duties, he was not allowed access to his work and was informed that his services were terminated; he reported this to the Labour Inspectorate on 2 August and at the same time lodged a request with the labour court to be reinstated, since he enjoyed trade union privilege through being a member of the Central Mixed Wages Commission and Chairman of the Confederation of Metal Workers' Unions. Mr. Sánchez Ossandón brought the case to the notice of the Ministry of Labour, which, according to the complainants, made representations to Madeco but could not induce the company to change its attitude. The complainants add that the attitude of Madeco is merely a continuance of a campaign of outright persecution against Mr. Sánchez Ossandón on the sole ground of his trade union activity.
2. 116. In its reply dated 20 November 1961 the Government of Chile stated that as soon as the competent authorities were informed of the matter they had instructed the labour services to investigate the facts and demand compliance with the rules protecting the privilege of trade union leaders, of whom Mr. Sánchez Ossandón was one. The Government added that the Provincial Labour Inspectorate had taken measures accordingly and, in view of the undertaking's refusal to reinstate Mr. Sánchez Ossandón, had laid information with the labour courts for contravention of the existing rules which forbid dismissal or the mere suspension of trade union rights without previous statutory permission. Further, the Government added in its reply, the Ministry of Labour had directly requested Madeco to explain the implications of its decision and, if possible, to reconsider the step it had taken, but was unsuccessful in this; a memorandum from the Managing Director of Madeco contended that Mr. Sánchez Ossandón had not been dismissed but that his work contract had lapsed for reasons which might be summed up as frequent absences from work and abandonment of his post when he went to Geneva.
3. 117. When judgment had been given in the action against the firm of Madeco for failure to comply with statutory procedure governing the dismissal of a trade union official, the Government forwarded copies of the verdict given by the courts of first and second instance and, finally, by the Supreme Court. These verdicts showed that the firm had been sentenced to a fine for failure to comply with the law.
4. 118. Nevertheless, as regards the position of Mr. Sánchez Ossandón, the Committee noted that a communication from the Government dated 6 February 1963 stated that the Ministry of Labour had ascertained that he had not resumed work and had been paid no compensation, and that the case was still pending in the labour courts.
5. 119. In these circumstances the Committee took the view that the judgment of the labour courts might make available information that would be useful in appreciating whether the allegations were justified, and recommended the Governing Body to ask the Government to forward a copy of the judgment, and to decide in the meantime to postpone its examination of this aspect of the case.
6. 120. In a memorandum dated 21 December 1963 the Government stated that the court of the first instance had dismissed Mr. Sánchez Ossandón's case, but that he had lodged an appeal; when a final verdict had been given the Government would forward a copy.
7. 121. In view of this situation and the lack of any further information from the Government, the Committee decided, at its 36th, 37th, 38th and 39th meetings, to postpone its examination of the case while asking the Government to be good enough to forward the necessary information as soon as possible.
8. 122. In a memorandum dated 17 March 1965 the Government supplied additional information about the case. The verdict given by the court of second instance was partly favourable to Mr. Sánchez Ossandón, but the defendants lodged an appeal with the Supreme Court, which gave its judgment on 3 July 1964. The latter body stated that all the facts recorded in the judgment of first instance showed in a way that left no room for doubt that the plaintiff repeatedly broke his contract of employment and that this constituted a ground for the lapsing of this contract, as stated by the defendants. Accordingly the Court accepted the latter's appeal and quashed the judgment of the court of second instance, upholding in all respects the judgment of first instance which had dismissed Mr. Sánchez Ossandón's case.

B. B. The Committee's conclusions

1. 123. In all cases which are the subject of pending national judicial proceedings affording all the guarantees of normal judicial procedure the Committee has always followed the practice of not proceeding to examine such cases if the proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded. In many cases the Committee has asked governments to forward copies of judgments given and their grounds.

124. The Committee notes with interest the communication received from the Government, which quotes the operative part of the Supreme Court's judgment. Nevertheless, in view of the fact that the Court also refers to the judgments of first and second instance, which appear to have contained a detailed analysis of the reasons for the measures taken against Mr. Sánchez Ossandón in the light of de facto and de jure aspects of the case, the Committee recommends the Governing Body, in order to secure all the material needed to come to a conclusion on this case, to request the Government to be good enough to forward copies of these judgments and their grounds.