Definitive Report - Report No 370, October 2013

Case No 2936 (Chile) - Complaint date: 01-MAR-12 - Closed

Allegations: The complainant organizations allege acts of anti-union discrimination (dismissals and proceedings to lift trade union immunity) against trade union officials and members in various enterprises in the transport sector

1. 293. The complaints in the present case are contained in communications from the Bolivarian Confederation of Transport Workers of Chile (CBT), dated 1 and 13 March 2012, and from the National Federation of Transport Workers (FNTP), dated 2 March 2012.
2. 294. The Government sent its observations in a communication dated 24 May 2013.
3. 295. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 296. In its communication of 1 March 2012, the CBT alleges that, in view of the lack of adequate maintenance carried out on the buses used by the Alsacia enterprise, the trade union officials were obliged to carry out a maintenance check on the buses to ensure they were in good working order for both workers and passengers. When the trade union officials performed the maintenance check, numerous irregularities were found, resulting from a lack of maintenance, which resulted in a collective complaint and demands for the enterprise to find immediate solutions. The CBT adds that the extreme lack of maintenance on the buses was also observed by the Chilean police who, on the request of the trade union organization, came to check the level of wear and tear on a number of buses.
2. 297. The CBT adds that the severity of the issues found during the maintenance check obliged the trade union officials to initiate collective action in which only the buses that complied with the applicable safety standards were permitted to depart. The enterprise responded with intimidation and arrogance, and despite the trade union officials showing it the irregularities found in the buses that would require maintenance work before they could be approved for departure to ensure the safety of both passengers and drivers, the enterprise response was to initiate proceedings to lift the trade union immunity of the 25 trade union officials who took part in the collective action.
3. 298. In its communication dated 13 March 2012, the CBT states that since the establishment of the Inter-enterprise Trade Union of the Tur Bus Holding (SITHOTUR) the enterprise has tried to prevent its creation. Two days after the establishment of the trade union in September 2007, two trade union officials were dismissed from the enterprises Tur Bus Ltd and Cóndor Bus Ltd respectively (both enterprises belong to the same commercial firm). The trade union officials in question were later reinstated.
4. 299. The CBT adds that on a number of occasions the trade union organization requested that an inspection be carried out of the enterprise Tur Bus Ltd, particularly in respect of health and safety, in its various workplaces at the national level and, specifically, in the localities of Santiago, Arica, Iquique, San Carlos, Antofagasta (in this particular locality temporary closure was requested owing to the repeated transgression of labour rights noted by the Provincial Labour Inspectorate). The complainant organization also states that a working group met on 8 and 17 September 2008, and asked that the trade union organization be legitimized in accordance with ILO Conventions Nos 98 and 135, and requested elements of personal protection for workers in keeping with the activities they performed and authorization to give information talks on occupational safety, health and hygiene and on labour law, in the cities of Santiago and Antofagasta.
5. 300. The CBT alleges that in this context the enterprise initiated proceedings for the lifting of trade union immunity against the officials of the SITHOTUR trade union organization. The complainants consider it strange that despite it being a matter of the same things happening on the same dates, the courts of law rejected the application to lift the trade union immunity of Mr Carlos Chamblas, yet allowed the lifting of the trade union immunity of Mr Marcelo Ortega Salazar, Vice-President of the CBT, who was performing trade union activities.
6. 301. In its communication of 2 March 2012, the FNTP said that following the bankruptcy of the urban passenger transport enterprise Buses Gran Santiago, the Government, following a series of meetings between the various parties, including the workers represented by their trade union officials, gave the tender for its services to two new enterprises, one of which was Car Bus Urbano, belonging to the multinational group Veolia, which absorbed a large number of the workers who had lost their jobs as a result of the bankruptcy and a very small number of trade union officials.
7. 302. The complainant organization states that officials from the Buses Gran Santiago and Express Santiago Uno Inter-enterprise Trade Union participated in the job application process and signed their respective contracts. It adds that the representatives of the enterprise administration, who were from the bankrupt enterprise, were perfectly aware that a number of workers were trade union officials. The organization alleges that, on 11 November 2012, a number of trade union officials were dismissed (including the President, the Secretary and the Treasurer) with the enterprise citing the reason as the expiration of their employment contracts, but the complainant organization maintains that the reason for the dismissals was that they were trade union officials. The organization indicates that following this incident the matter was brought to the attention of the labour inspectorate. The President of the Confederation of Transport intervened and the reinstatement of the trade union officials was ordered, but this did not occur owing to the systematic refusal of the Car Bus Urbano enterprise.

B. The Government’s reply

1. 303. In its communication of 24 May 2013, the Government states that the Alsacia enterprise says in respect of the complaint by the CBT that, on 13 May 2011, on the premises of the enterprise, a group of trade union officials, including some allegedly representing the CBT, participated in an act described as sabotage and illegal. This act allegedly consisted of obstructing the departure of numerous buses at rush hour, which disrupted the public transportation of passengers in the city of Santiago. The enterprise says that it suffered economic harm and it indicates that it initiated proceedings for the lifting of trade union immunity against 25 trade union officials. In one of the cases an agreement was reached that resulted in the dismissal of the trade union official by mutual accord and in the others the courts considered that the facts had been sufficiently serious to warrant the lifting of the officials’ trade union immunity. Annulment proceedings were brought against the judgments stipulating the lifting of trade union immunity before the Santiago Court of Appeals, which dismissed them, upholding the enterprise’s request.
2. 304. The enterprise also indicates that in a letter sent to the CBT it stated, inter alia, that it was not in agreement with the maintenance check that the workers and trade union officials carried out on the enterprise’s buses. It told them that neither the internal regulations nor the individual employment contracts authorized conduct of that sort by the bus operators, as a specific procedure was in place that operators must use to report any faults or damage to the buses. Lastly, the enterprise says that up until 18 October 2012, there were 197 trade unions and 421 trade union officials. Moreover, a collective bargaining process had been completed which resulted in the establishment of criteria to improve service to bus users, where workers had the opportunity to air their legitimate interests.
3. 305. With regard to the allegations relating to the Tur Bus Ltd, the Government states that according to the enterprise the General Manager of the enterprise sent a letter explaining the situation of the trade union official, Mr Marcelo Ortega Salazar. The letter indicated that his actions contravened the law, prompting the initiation of proceedings for the lifting of trade union immunity. The court, on the basis of the evidence provided and the arguments presented by the parties, concluded that the actions taken by Mr Marcelo Ortega Salazar were illegal and constituted grounds for the lifting of trade union immunity. The enterprise adds that the trade union official lodged an appeal against the first-instance ruling, which was refused, with the lifting of trade union immunity consequently being upheld. That judgment was appealed in cassation proceedings regarding its substance before the Supreme Court of Chile, which declared the appeal inadmissible. Lastly, there are ten trade union organizations at the enterprise, six of which have signed collective agreements, and the trade union membership rate is 52 per cent of a total of more than 5,000 workers.
4. 306. With regard to the complaint concerning workers at the Car Bus Urbano SA enterprise, the Government states that the Labour Directorate of Chile has indicated that in view of reports of violations of fundamental rights, it conducted inquiries into the cases of Miguel Ángel Álvarez Godoy, Héctor Lara Fernández, Alfredo Fuentes Meneses and Marcelo Jerez Rubilar, and violations were found to have occurred in all of them, with conciliation agreements being reached in court and the workers receiving compensation.
5. 307. The Government indicates that on the basis of the facts provided by the complainant organizations and the employers it conducted an assessment to analyse the possible existence of acts of anti-union discrimination by the Government of Chile from the perspective of ILO Conventions Nos 87 and 98. In respect of the Alsacia enterprise, the Government refers to the judgment handed down by the Second Labour Court of the Municipality of Santiago in the action initiated by the enterprise, which states: (1) “it has been established that the defendants prevented the departure of approximately 90 per cent of the fleet at the Maipú depot, without a valid reason, which disrupted the normal running of the enterprise”; (2) “the elements established by law that justify the grounds being invoked have been met, as it is clear that the defendants engaged in an action preventing the buses from leaving the depot in an unjustified manner, resulting in the plaintiff enterprise not being able to operate in the normal manner, which consists of the public transportation of passengers during the rush hour”; (3) “the defendants participated directly in actions that they are neither authorized nor justified to undertake, obstructing the departure of the enterprise’s buses and not completing the tasks they were employed to perform by the enterprise”; and (4) “in the view of this judge, this lack of compliance is serious, if account is taken of the way the events unfolded, the time chosen to carry out the action, which is entirely unfounded, the fact that the enterprise was not even informed about it, the delay in the departure of the buses, affecting part of the population, preventing without any justification the departure of the buses, facts that lead to the conclusion that the defendants seriously breached their contractual obligations”. The Santiago Court of Appeals dismissed an appeal against this judgment.
6. 308. The Government also refers to judgment No. 995-2008, “Tur Bus Ltd v. Ortega Salazar”, handed down by the Seventh Labour Court of Santiago, and to the judgments handed down by the Court of Appeals of Santiago and the Supreme Court of Chile relating to the case. The judgments refer to article 160(7) of the Labour Code, namely “serious failure to fulfil the obligations stipulated in the employment contract”. The Government indicates that the Court of First Instance considered, once it had analysed the case using all legal procedures for gathering and examining evidence, that Mr Marcelo Ortega Salazar violated provisions relating to workers’ rest and the internal regulations of the enterprise (paragraph 6), and also refused to be monitored by the route inspectors on a number of occasions, and therefore found that “the serious failure to fulfil the obligations stipulated in the employment contract ... not only requires the worker to have failed to fulfil some of the obligations stipulated in the contract, which occurred in the case in question, but also that the failure to fulfil the obligations is of a nature and magnitude that affects the essence of the fulfilment of the contractual obligations, and as such goes beyond minor infringements accepted by the parties or the law”. The higher bodies rejected the appeals lodged.
7. 309. The Government states that it should be recalled in this case relating to proceedings for the lifting of the trade union immunity of trade union officials at the Alsacia and Tur Bus Ltd enterprises, that legislation, at both the constitutional and legal levels, upholds the principles of equality, non-discrimination and due process. The Government stresses that Convention No. 87 establishes, in Article 8, that “workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land”, which, according to the judgments handed down by the abovementioned national courts, has not been respected by the complainants. In turn, they have had procedural opportunities and have exercised their constitutional rights without any form of obstruction by Chilean state bodies. Trade union immunity is not absolute and, for serious and well-founded reasons, it can be cancelled and the decision taken to dismiss the trade union official should the circumstances require it. The Government indicates that in Chile it is the courts of law that are called on to determine the relevance of this by way of legal proceedings for the lifting of trade union immunity. It is to be noted that these proceedings are conducted in strict compliance with the rules of due process. Lastly, the Government states that the Labour Directorate of Chile has fulfilled its supervisory role and that the courts of justice have concluded the proceedings in accordance with the law and have resolved the cases in full compliance with legislation.

C. The Committee’s conclusions

1. 310. The Committee observes that the CBT and the FNTP allege acts of anti-union discrimination (dismissals and proceedings to lift trade union immunity) against trade union officials and members in various enterprises in the transport sector.

Alsacia transport enterprise

1. 311. The Committee observes that the CBT alleges that the enterprise initiated proceedings for the lifting of trade union immunity against 25 trade union officials who took part in an activity that prevented the departure of buses that did not comply with prevailing safety standards, to ensure they were in good working order for both workers and passengers. In this respect, the Committee notes the Government’s indication that the enterprise said that: (1) on 13 May 2011, on the premises of the enterprise, a group of trade union officials, including some allegedly representing the CBT, participated in an act described as sabotage and illegal: obstructing the departure of numerous buses at rush hour, which disrupted the public transportation of passengers in the city of Santiago; (2) it suffered economic harm and it indicates that it initiated proceedings for the lifting of trade union immunity against 25 trade union officials, obtaining favourable rulings, and in one of the cases an agreement was reached at the judicial level that resulted in the dismissal of the trade union official by mutual accord; (3) the courts considered that the facts had been sufficiently serious to authorize the lifting of the officials’ trade union immunity; (4) annulment proceedings were brought against the judgments stipulating the lifting of trade union immunity before the Santiago Court of Appeals, which dismissed them, upholding the enterprise’s request; (5) in a letter sent to the CBT it stated, inter alia, that it was not in agreement with the maintenance check that the workers and trade union officials carried out on the enterprise’s buses and it told them that neither the internal regulations nor the individual employment contracts authorized conduct of that sort by the bus operators, as a specific procedure was in place that operators must use to report any faults or damage to the buses; and (6) up until 18 October 2012, there were 197 trade unions and 421 trade union officials and a collective bargaining process had been completed which resulted in the establishment of criteria to improve service to bus users, where workers had the opportunity to air their legitimate interests.
2. 312. The Committee notes that, according to the Government, the preamble to the judgment of the Second Labour Court of the Municipality of Santiago in the action initiated by the enterprise states: (1) “it has been established that the defendants prevented the departure of approximately 90 per cent of the fleet at the Maipú depot, without a valid reason, which disrupted the normal running of the enterprise”; (2) “the elements established by law that justify the grounds being invoked have been met, as it is clear that the defendants engaged in an action preventing the buses from leaving the depot in an unjustified manner, resulting in the plaintiff enterprise not being able to operate in the normal manner, which consists of the public transportation of passengers during the rush hour”; (3) “the defendants participated directly in actions that they are neither authorized nor justified to undertake, obstructing the departure of the enterprise’s buses and not completing the tasks they were employed to perform by the enterprise”; and (4) “in the view of this judge, this lack of compliance is serious, if account is taken of the way the events unfolded, the time chosen to carry out the action, which is entirely unfounded, the fact that the enterprise was not even informed about it, the delay in the departure of the buses, affecting part of the population, preventing without any justification the departure of the buses, facts that lead to the conclusion that the defendants seriously breached their contractual obligations”. The Committee further notes that, according to the Government, the Santiago Court of Appeals dismissed an appeal against this judgment.
3. 313. The Committee takes note of this information, and particularly the fact that the judicial authorities examined the alleged cases and granted the requests for the lifting of trade union immunity lodged by the enterprise. In these circumstances, and in the absence of other information, the Committee will not proceed with the examination of these allegations.

Tur Bus Ltd transport enterprise

1. 314. The Committee notes the allegation by the complainant organization CBT that the Tur Bus Ltd transport enterprise did not respect an agreement reached in the working group, did not allow a meeting of trade union officials to be held on the premises of the enterprise in the city of Antofagasta and initiated proceedings for the lifting of trade union immunity against two trade union officials (while the judicial authority dismissed one of the requests, it approved the lifting of the trade union immunity of the Vice-President of the CBT, Mr Marcelo Ortega Salazar). In this regard, the Committee notes that, according to the Government, the enterprise provided the following information: (1) the General Manager of the enterprise sent a letter explaining the situation of the trade union official, Mr Marcelo Ortega Salazar; (2) the letter states that his actions contravened the law, prompting the initiation of proceedings for the lifting of trade union immunity; (3) the court, on the basis of the evidence provided and the arguments presented by the parties, reached the conclusion that the actions taken by Mr Marcelo Ortega Salazar were illegal and constituted grounds for the lifting of trade union immunity; (4) the trade union official lodged an appeal against the first-instance ruling which was refused, with the lifting of trade union immunity consequently being confirmed; (5) that judgment was appealed in cassation proceedings regarding its substance before the Supreme Court of Chile, which declared the appeal inadmissible; and (6) there are ten trade union organizations at the enterprise, six of which have signed collective agreements and the trade union membership rate is 52 per cent of a total of more than 5,000 workers.
2. 315. The Government draws attention to judgment No. 995-2008, “Tur Bus Ltd v. Ortega Salazar”, handed down by the Seventh Labour Court of Santiago, and to the judgments handed down by the Court of Appeals of Santiago and the Supreme Court of Chile relating to the case. The judgments refer to article 160(7) of the Labour Code, namely “serious failure to fulfil the obligations stipulated in the employment contract”. The Government indicates that the Court of First Instance considered, once it had analysed the case using all legal procedures for gathering and examining evidence, that Mr Marcelo Ortega Salazar violated provisions relating to workers’ rest and the internal regulations of the enterprise, and also refused to be monitored by the route inspectors on a number of occasions, and therefore found that the “serious failure to fulfil the obligations stipulated in the employment contract ... not only requires the worker to have failed to fulfil some of the obligations stipulated in the contract, which occurred in the case in question, but also that the failure to fulfil the obligations is of a nature and magnitude that affects the essence of the fulfilment of the contractual obligations, and as such goes beyond minor infringements accepted by the parties or the law”. The higher bodies rejected the appeals lodged by the trade unionist mentioned.
3. 316. The Committee notes this information and will not pursue its examination of these allegations.

Car Bus Urbano enterprise

1. 317. The Committee observes that the FNTP alleges the anti-union dismissal from the Car Bus Urbano enterprise of a number of trade union officials (including the President, the Secretary and the Treasurer) belonging to the Buses Gran Santiago and Express Santiago Uno Inter-enterprise Trade Union and that although the labour inspectorate ordered the reinstatement of the trade union officials, the enterprise has refused to comply. In this regard, the Committee notes that the Government indicates that the Labour Directorate of Chile has stated that in view of reports of violations of fundamental rights, it conducted inquiries into the cases of Miguel Ángel Álvarez Godoy, Héctor Lara Fernández, Alfredo Fuentes Meneses and Marcelo Jerez Rubilar, and violations were found to have occurred in all of them, with conciliation agreements being reached in court and the workers receiving compensation. The Committee recalls that, in cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, it has requested the Government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 839]. In the light of the results achieved in this specific case, the Committee will not pursue its examination of these allegations.

The Committee’s recommendation

1. 318. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.