Rapport intérimaire - Rapport No. 331, Juin 2003

Cas no 2215 (Chili) - Date de la plainte: 12-AOÛT -02 - Clos

Allegations: The complainant organization alleges an anti-union dismissal of a trade union official in the Pedro Pablo Castillo Castillo company who, despite administrative and judicial decisions for his reinstatement, at present is still not occupying his post, and anti-union activities against the Trade Union of the Sanitation Works Company of the Vth Region, ESVAL S.A., including attempted suborning of personnel through threats and dismissals; illegal confiscation of officials’ work tools (telephone, computer); prohibition on performing their functions and delay in paying their remuneration.

1. 169. The complaints are contained in communications from the Latin American Workers’ Confederation (CLAT) of August and November 2002.
2. 170. The Government sent its partial observations in a letter dated 2 January 2003.
3. 171. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 172. In its communication of August 2002, the Latin American Workers’ Confederation (CLAT) alleges the anti-union dismissal of Erick Dusan Yapur Ruíz who had worked as a driver in the Pedro Pablo Castillo Castillo collective haulage and transport company since 1998 and was director of trade union No. 3 of the company. The complainant organization indicates that although on 3 June 2002, the First Labour Court in San Miguel ordered his reinstatement in his normal work, up to the time of the submission of the complaint, Mr. Yapur Ruíz had not been reinstated nor paid the corresponding remuneration. This situation persists despite pressure exercised by the National Confederation of Transport and Related Workers in Chile (CONATRATCH) on the Ministry of Public Works, Transport and Communications and the presence of inspectors in the workplace, who reported that Mr. Yapur Ruíz was denied access to the company’s premises. The complainant organization maintains that this kind of dismissal is an attack on the right to work and freedom of association and finally requests that Mr. Yapur Ruíz be reinstated in his post.
2. 173. In addition, in its communication of November 2002, the complainant organization alleges that according to information received from the Autonomous Confederation of Workers of Chile (CAT), serious incidents occurred against the Trade Union of the Sanitation Works Company of the Vth Region, ESVAL S.A., in particular against Mr. Aquiles Mercado, president of the union and other union officials. According to the complainant organization, the trade union has been subject to pressure and harassment by the company since 1996, when it was discovered that financial resources had been squandered, which seriously affected the capital, remuneration and legal shares in the company’s profits. The trade union firmly opposed the privatization of the company and because of this stand attempts were made to suborn the personnel by threats and dismissals which succeeded in frightening the members of the trade union. Many of them, however, refused to be suborned. In addition, the officials’ office equipment (telephone, computer) was illegally confiscated, they were prohibited from performing their functions and payment of their remuneration was delayed in order to frighten them and make them leave the union. The complainant organization adds that this attitude is unacceptable and reports that the company’s majority shareholder is the British transnational corporation, Anglian Water Group.

B. The Government’s reply

1. 174. In its communication of 2 January 2003, the Government indicates that Mr. Erick Yapur Ruíz is the president of trade union No.3 of the company concerned and director of the National Confederation of Company and Inter-company Federations and Trade Unions of Land Transport and Related Workers of Chile (CONATRATCH). The Government states that on 16 October 2001, Mr. Yapur Ruíz was unlawfully dismissed, a fact verified and sanctioned by the competent labour inspectorate. Subsequently, the unit for the Defence of Freedom of Association of the Metropolitan Regional Labour Directorate prepared a judicial complaint of anti-union practices by the employer which was submitted to the San Miguel Court of Appeal. The Labour Court ordered the reinstatement of Mr. Yapur Ruíz on 10 June 2002 but this was not possible because Mr. Yapur Ruíz did not turn up. His reinstatement finally took place on 20 June, immediately after which the Regional Labour Directorate as plaintiff added the reinstatement order to the records of the case. On 25 June, the court handed down a judgement in which it found the enterprise Pedro Pablo Castillo Castillo guilty of anti-union practices, namely the unlawful dismissal of a worker with trade union immunity and imposed a fine and the costs of the trial. Given that at the time when the judgement was handed down, the reinstatement had already taken place, the court did not rule on that aspect. The employer entered an appeal and application for annulment and the hearing of the case is at present pending.
2. 175. The Government states that on 26 July 2002 the enterprise Pedro Pablo Castillo Castillo, having been notified of the matter, again dismissed Mr. Yapur Ruíz on the grounds that he was awaiting the result of the appeal. The employer was fined heavily for failing to comply with the reinstatement order and failure to pay in full the remuneration owed to the trade union official.

C. The Committee’s conclusions

1. 176. As regards the alleged anti-union dismissal of Mr. Erick Dusan Yapur Ruíz, a driver in the Pedro Pablo Castillo Castillo collective haulage and transport company and director of trade union No. 3 of the company, the Committee observes that although the official was reinstated for a time in June 2002, at the time when the complaint was submitted, he was no longer in his post and had not been paid the related remuneration and, according to inspectors who visited the workplace, the official had been denied access to the company’s premises.
2. 177. The Committee observes that the Government confirms the facts indicated by the complainant that: Mr. Eric Yapur Ruíz is the president of trade union No. 3 of the company; he was unlawfully dismissed; and that at present he is still not in his post. The Committee also observes that the Government states that: (1) the matter was verified and sanctioned by the competent labour inspectorate; (2) the unit for the Defence of Freedom of Association of the Metropolitan Regional Labour Directorate submitted a judicial complaint of anti-union practices by the employer; (3) the Labour Court ordered his reinstatement which could not take place on the date envisaged because Mr. Yapur Ruíz did not turn up; (4) the reinstatement finally took place and immediately thereafter the Regional Labour Directorate added the reinstatement order to the records of the case; (5) the court found the enterprise Pedro Pablo Castillo Castillo guilty of anti-union practices consisting of the unlawful dismissal of a worker with trade union immunity and imposed a fine and the costs of the trial; (6) the ruling did not mention reinstatement since at the time, reinstatement had already taken place; (7) the ruling was appealed by the employer and the hearing of the case is now pending; (8) on 26 July 2002, the enterprise Pedro Pablo Castillo Castillo, having been notified of the ruling, again dismissed Mr. Yapur Ruíz from his functions on the grounds that he was awaiting the result of the appeal; and (9) the employer was heavily fined for failure to comply with the reinstatement order and pay in full the remuneration owed to Mr. Yapur Ruíz.
3. 178. The Committee recalls that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 739]. In the circumstances of this case, the Committee requests the Government to adopt measures to ensure that Mr. Yapur Ruíz is reinstated in his place of work at least until the appeal and application for annulment are decided by the court. The Committee also requests the Government to keep it informed of developments.
4. 179. The Committee also observes that the complainant organization alleges that serious incidents occurred against the Trade Union of the Sanitation Works Company of the Vth Region, ESVAL S.A., in particular against Mr. Aquiles Mercado, president of the union and other union officials, and that the trade union has been subject to pressure and harassment by the company since 1996. According to the complainant organization, as the trade union firmly opposed the privatization of the company; attempts were made to suborn the personnel by threats and dismissals; the officials’ office equipment (telephone, computer) was illegally confiscated; and they were prohibited from performing their functions and payment of their remuneration was delayed in order to frighten them and make them leave the union. The Committee notes with regret that the Government has not communicated its observations in this respect and requests it to send them without delay in order to examine these allegations in full knowledge of the facts.

The Committee's recommendations

1. 180. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In the circumstances of this case, the Committee requests the Government to adopt the necessary measures to ensure that Mr. Yapur Ruíz is reinstated in his place of work at least until the appeals lodged in this case are decided by the court. The Committee also requests the Government to keep it informed of developments.
   • (b) As regards the serious allegations concerning the Trade Union of the Sanitation Works Company of the Vth Region, ESVAL S.A., the Committee notes with regret that the Government has not communicated its observations in this respect and requests it to send them without delay in order to examine these allegations in full knowledge of the facts.