OEA/Ser.L/V/II.66
Doc.17
9 September 1985
Original:  Spanish

REPORT ON THE SITUATION OF HUMAN RIGHTS IN CHILE

h.       New Legislation Subsequent to the Labor Plan

74.     In late 1979 and early 1980 the Government of Chile issued a number of decrees that have modified in part the legislation provided for in the Decrees of the Labor Plan enacted in 1979, in some cases, or have provided other types of measures.  To sum up, the decrees of this stage are the following:

75.     Decree No. 2950 of November 15, 1979, which excludes further sectors of workers from the possibility of collectively negotiating their conditions for labor contracts or employment contracts; this increased the number already excluded by Decree No. 2758 of June 1979.  In contrast, the Decree improved the conditions of employers with respect to labor demands or requests (Article 1) and voided the legal presumption of acceptance of a labor proposal if there was no specific reply to it by an employer within a period of 10 days.

76.     Decree No. 3355 of May 1, 1980, also amending provisions of Decrees No. 2756 and 2758 on union organization and collective bargaining, restricted them even more (Articles 2 and 3).

77.     Decree No. 3410 of May 28, 1980 authorized the President of the Republic to reorganize the public administration without any rule on privilege or tenure and therefore left the employees without any right to complain against possible dismissals.  In addition, the decree is retroactive, which, although obvious, should be emphasized since it creates a serious element of legal instability in the public service sector.  [28]

i.        The 1980 Constitution

78.     Article 19 (15) of the 1980 Constitution establishes the right to associate “without prior authorization”.

79.     Paragraph 16, for its part, stipulates the following with respect to labor union rights:

Every person has the right to free undertaking and free selection of his work, with a just compensation.

Any discrimination, which is not based on personal competence or fitness, is prohibited, without prejudice that the law may require Chilean citizenship or age limits in certain cases.

No type of work can be prohibited except in those cases where it is contrary to morals, or public security and health, or where it should so be required by the national interest as declared by the law.  No law or provision of the public authority may demand affiliation to any organization or entity whatsoever, as a requisite for undertaking certain activity or work, nor can it demand that any such affiliation be discontinued as a condition for performing such activities or keeping such work.  The law shall determine which professions require a title or university degree and the conditions to be met in order to engage in them.

Workmen have the right to collective bargaining with the company, for which they work, except in those cases where the law should expressly prohibit negotiations.  The law shall establish the procedures for collective bargaining and the appropriate procedures for reaching a just and peaceful solution.  The law shall provide for the instances in which collective bargaining is to be submitted to mandatory arbitration; this arbitration should be entrusted to special tribunals of experts, the organization and authority of which shall be established by the law.

Neither State nor municipal employees may declare a strike. Nor may strikes be declared by persons working for corporations or enterprises, regardless of the nature, objectives or functions thereof, which provide public services and the paralization of which might harm the health, the economy of the country, the supplies to the population or the national security.  The law shall establish the procedures to determine the corporations or enterprises whose workers will be covered by the prohibition set forth in this paragraph.

j.        Abolition of the Labor Courts

80.     No sooner had the 1980 Constitution entered into force than the Government Junta, by Decree Law No. 3643, abolished the labor courts and labor jurisdiction was assigned to civil courts with effect from May 1, 1981.

81.     In the view of the Commission, this measure deprived the workers of the special protection afforded them by a special proceeding for rapidly dealing with the conflicts that arise daily in employment matters.  The abolition of those courts has meant that workers will now have to wait their turn in the civil courts that deal with all types of cases in order to demand the payment of compensation owed them or the recognition of the rights they claim, which can entail anxious delays for those who normally obtain their only income precisely from their employment. Furthermore, the Commission fails to understand how certain legal principles of labor laws that are deeply rooted in Chile, such as the recognition of the effective inequality between the parties or the obligation of the State to protect workers, are going to be safeguarded by courts whose actions are determined by opposing principles, such the equality of the parties and full freedom of entering into contracts.

k.       Law No. 18,018 of 1981

82.     In August 1981 the Government of Chile adopted other measures on the right to organize and labor union freedom in that country, designed to complete and “modernize” the provisions of the “Labor Plan”.

83.     Among those measures Law No. 18,018 of August 14, 1981 warrants special mention.  It amends many of the provisions of Chilean labor law, some prior to 1973, and amends other provisions of Decree No. 2,200 of 1978 on employment contracts.  [29]

84.     The principal provisions of this law are summarized below:

85.     It completely repeals Law No. 16445 of April 8, 1966 on Rules for the Termination of Labor Contracts, which provided that the employer could not terminate an employment contract “except on justified grounds” (Art. 1).  Under this Decree a worker may be dismissed merely on the grounds of “the needs of the enterprise”.

86.     It stipulates that temporary contracts may be renewed only once, and repeals Decree Law 2200, which had extended the life of this type of contract from six months to two years.

87.     Labor contracts are deemed to have been entered into with the enterprise as a legal person and not with its owners or proprietors, regardless of the legal form of the enterprise.  This is also considered positive since it contributes to stability in employment, assuming that the proprietor or owner changes and the worker is thus left to the vagaries of the new situation, as occurred with Decree No. 2,200.

88.     It distinguishes between old and new workers as regards indemnities: new workers can agree on these indemnities with the owners either individually or collectively except that, if an agreement is not reached, the enterprise will have to pay an indemnity of one month for each year of service up to a maximum of five months, which is a new limit, not provided for in earlier years and which is undoubtedly detrimental to workers since the limit is short. In this regard it should be noted that, given the evident inferior position of workers, they might be forced to “accept” the indemnity proposed by the enterprises.

89.     With respect to old employers (those hired before August 14, 1981) Law No. 18,018 grants them an indemnity of one month for each year of service without limit and an indemnity that exceeds five months can be negotiated. According to the Government authorities, the purpose is to replace a future and uncertain benefit by an immediate and certain benefit, which would favor workers.

90.     With respect to collective dismissals and suspension of operations there is a clear retreat. Before Law No. 18,018, businessmen had to obtain authorization from the Ministries of Labor and of Economic Affairs to dismiss more than ten wage earners in one month.  If they acted without that authorization, the employers were liable to fines and the workers had the right to a double indemnity.  This authorization from the two Ministries is no longer required so that the workers are more unprotected and have lost the possibility of collecting a larger indemnity.

91.     With respect to the working day, it was eight hours according to the earlier legislation and could be as long as 9 hours and 36 minutes if Saturday was not a working day.  Now a normal working day can be as long as 10 hours.  This means a decrease in overtime, for which additional payment is received.  Thus workers will lose income and employers will have lower costs.  Furthermore, an employer is empowered to unilaterally change the time of the start of the workday.  In other words, the contract may be changed without the workers being consulted, which contradicts the most elementary principles of law.

92.     With respect to wages, the most important change is that the minimum legal wage ($5,186) has been suppressed for persons under 21 years of age and over 65 years of age.  These workers, who have little bargaining power, must now “freely” negotiate on their wages with their employers.

93.Finally, this law limits annual holidays and suppresses rights acquired under the legislation in force before 1973. In addition, certain sectors of workers lose the extra holiday of 25 days in mining areas.

1.       Subsequent Legislation

94.     In December 1982, important labor laws were enacted.  Thus, Law No. 8,196 of December 26, 1982 amended Decree Law No. 2,756 in part and in Article 36 stipulated that “labor unions cannot contract or directly or indirectly receive contributions, donations, loans or in general any other kind of financing from the enterprises to which their members belong.”

95.     Three days later, on December 29, 1982, Law No. 18,198 was enacted. In practice it meant freezing the wages of workers not subject to collective bargaining, i.e., the majority of Chilean workers. On March 29, 1984 the transitory articles of the above-mentioned Law 18,198 were repealed and the law was amended to the effect that “in collective bargaining procedures that were begun prior to the entry into force of this law and are pending of the date of its entry into force, the permanent rules established in Articles 49 and 60 of Decree Law No. 2758 of 1979 shall apply” and that whenever “the process of collective bargaining is subject to arbitration procedure, the employer shall be entitled to make a new offer before the arbitration tribunal, within 10 days following the entry into force of this Law, and as a result the period referred to in the fourth subparagraph of Article 42 of Decree Law No. 2758 of 1979 shall be suspended for a like period.”  This would mean that the bargaining “floor” will be the equivalent of the wages and allowances workers have at the time they begin their bargaining and not necessarily the “floor” at December 31, 1982, as was imposed by Law No. 18,198.  [30]

96.     In 1984 Law No. 18.372, amending Decree Law No. 2.200 on employment contracts, was enacted.

97.     This law corrected some injustices that affected workers, for example it prohibited individual contracts from modifying collective contracts to the detriment of workers.  Earlier, it was the practice of employers to negotiate individually with workers, which thus weakened collective bargaining.

98.     Law No. 18,372 also abolished “the operating needs of the enterprise” as a ground for dismissal without compensation.  This ground had been frequently invoked to dismiss workers and leave them completely defenseless.  In addition, the law prohibits the negotiation of the payment of indemnity for years of service and instead stipulates an indemnity of one month for each year of service up to a maximum of five.

99.     Furthermore, that law stipulates that the ordinary working week of 48 hours cannot be worked in less than five days and thus amends Decree Law No. 2,200, which permitted a minimum of four days, so that there could be daily shifts of up to 12 hours without payment of overtime.  In addition, Law No. 18,372 declares that teachers who have worked at least six months, up to December, must be paid salaries for the months of January and February and thus ended the practice in some private schools of dismissing teachers in December and rehiring them in March at the beginning of the school year.

100.    The Commission has no doubt that Law No. 18,372 represents an advance relative to the earlier conditions of the employment contract, such as those contained in Decree Law No. 2,200.

101.    However, in the opinion of the Commission, the Chilean labor legislation enacted by the Military Government still contains serious gaps and limitations on the rights of workers.  Thus, for example, appropriate legislation has not been enacted to eliminate or limit collective dismissals; nor has collective bargaining by branch of activity been authorized, at least not in those sectors in which negotiation by enterprise is virtually impossible, as in commercial and agricultural sectors.

102.    It should also be noted that throughout this period workers have had virtually no participation in the drafting of labor laws.

103.    Nevertheless, in the opinion of the Commission, the restrictions on labor and labor union rights in the period covered by this report, in addition to the legislative measures mentioned, stem from the general situation in Chile, which has been expressed in repeated violations of the human rights of union officials, in constant states of emergency that have deprived workers of the exercise of their freedoms and rights, and from the economic conditions that have resulted especially in a high level of unemployment, all of which has, as will be seen below, affected the Chilean labor movement.

C.       THE CHILEAN LABOR UNION MOVEMENT

a.       Obstacles to Labor Union Organization and Freedom

104.    A student of the state of labor unions in Chile has written that in September 1973 wage earners in Chile accounted for almost 80 percent of the active population and that more than half of that percentage consisted of manual workers employed in the agricultural, mining, industrial, construction, energy and transportation sectors. Of those wage earners, 45 percent were organized in about 10,000 labor unions with more than 1,100,000 members.  Furthermore, government or state employees--the organization of who had been legalized in 1971--numbered 300,000.  [31]

105.    That situation was to change radically in a period of ten years.  According to the figures of the Labor Directorate, at the end of 1983 there were 4,401 labor unions in Chile with a membership of 320,903, each union having an average of 73 members.  The percentage of members represented only 8.7 percent of the labor force and 10.2 percent of those employed.  [32]

106.    In the subsequent years the Chilean Labor Union Movement was to be affected not only by the labor legislation that was being enacted by the military government but also by the economic conditions of the country, especially the sharp increase in the unemployment rate and the general situation of the exercise of human rights.

107.    As was seen earlier in this chapter, one of the first measures of the Government was to repeal the legal personality of CUT.  [33] In addition, as mentioned earlier, under Decree No. 198 of December 10, 1973, various measures limiting trade union organization and freedom were adopted, [34] and later, with the Labor Plan, as it was formulated by Decree Law No. 2756 of June 29, 1979, various limitations were placed on the establishment and operation of labor unions, federations and confederations, and confederations were prohibited from participating in collective bargaining on employment conditions and in collective employment agreements and, in general, in party-political activities.  [35]

108.    In addition to such legislative limitations, in analyzing the Chilean labor union movement the considerable unemployment that has occurred, especially in recent years in Chile, cannot be disregarded.  This, and the limitations on collective bargaining, which stem from the notion that labor is a good subject to market conditions, and that the State should not play an active role in the protection of workers, has led to the weakening of the labor union movement.

109.    Unemployment has increased in recent years to levels that are unprecedented in the history of Chile.  Thus, in the period August-October 1984, according to the National Statistical Institute, the employment situation in the country was as follows.

NATIONAL EMPLOYMENT

(Thousands of persons and percentages)

110.    A serious limitation on the labor union movement that is also to be noted is the state of human rights in Chile.  If there has been any sector in that country which has been the subject of permanent harassment and persecution, it has been the labor union sector.  After the military coup, many trade union officials, especially those who were active members of political parties and supported the Government that was overthrown, were executed, disappeared, died while in custody, or were forced to go into exile.

111.    Thus, among the labor union officials that are missing, mention may be made of the following; Bernardo Araya Zuleta, former Official of CUT; José Baeza Cruces, former member of the CUT National Youth Council; Abel Barria A. Pedro, CUT Official, Executive Committee for Youth, Valdivia; Lincoyan Barrios Cataldo, Official of the National Association of Municipal Employees; Jose Corvalan Valencia, former President of the National Public Health Union of the San Juan de Dios Hospital; Victor Diaz Lopez, former CUT Official; Lenin Diaz Silva, labor union official of La Exotica Mines; Uldarico Donaire Cortez, former official of the Union of Workers of the Horizonte Printing Plant; Jaime Donato Avendaño, leader of the Electrical Workers Union; Humberto Fuentes Rodriguez, official of the Federation of Construction Workers; Mario Fuica Vega, former member of the Union of Municipal Workers of Rengca; Guillermo Galvez Rivadineira, Secretary of the Union of Printing Workers, Quisantu; Juan Gianilli Company, National Leader of SUTE; Fernando Lara Rojas, national leader of textile employees; Luis Lazo Santander, former Leader of the Federation of Electrical Employees; Patricio Lopez, Supervisor of the Federation of Textile Workers, Santiago; Nicolas Lopez Suarez, former National Leader of the CUT; Victor Nacaya Molina, Secretary of the Oveja Tome Union of Textile Workers; Guillermo Martínez Quijón, Leader of the Printing Workers Union; Sario Miranda Godoy, Member of the Federation of Metal Processing Workers; Raul Montoya Vilches, Leader of the Construction Workers Federation; Juan Moraga Garces, Member of the Construction Workers Federation; Fernando Navarro Allende, Leader of the Railway Workers Union; Miguel Nazar Quiroz, CUT Official; Rodolfo Nuñez Benavides, Executive Secretary of CEPCH; Juan Orellana Catalan, former Official of the Ranquil Confederation; Jose Palma Muñoz, former President of the ENDESA employees union; Raynalda Pereira Plaza, Trade Union Official; Waldo Pizarro Molino, Leader of the Textile Workers; Exequiel Ponce Vivencio, former Secretary General of the Federation of Port Workers; Armando Protilla Portilla, Leader of the Textile Workers; Luis Becabarran Gonzalez, former Leader of the Technical University of the State; Manuel Becabarran Rojas, Leader of the Printing Workers; Anibel Riquelme Pinc, former President of the Federation of Gas, Light and Sanitation Workers, Santiago; Jose Sagredo Pacheco, Leader of the Federation of Construction Workers; Jorge Salgado Salinas, Leader of the Campesinos Union; Jose Santos Guerra, Secretary of the Printing Workers Union; Pedro Silva Bustos, former Vice President of the Association of Municipal Employees; Jorge Solovera Gallardo, Member of the Federation of Mineral Processing Workers; Rolando Vazquez, CUT Official; Luis Vega Ramirez, Vice President of the Ranquil Confederation; Julio Verga Vega, Leader of the Municipal Workers Union; Hector Veliz Ramirez, Delegate of the Municipal Workers to the CUT; Carlos Viscarra Cofré, Leader of the FIAT Industrial Union, Santiago; Jose Weibel Navarrete, former leader of the Employees of the San José Hospital, Santiago; and Mario Zamorano Donoso, former Leader of the Federation of Leather Workers.  [37]

112.    In more recent years repression against labor union leaders has taken the form especially of expulsion from the country,  [38] arrest  [39] and forced relocation in distant and inhospitable places,  [40] without counting the death of some of them, still not clarified, such as that of the President of the National Association of State Employees, Tucapel Jimenez, and of the leader of the Teachers Union, Manuel Guerrero, to which the Commission referred in the chapter on The Right to Life in this report.

113.    In that context, the labor union movement has faced serious obstacles in expressing itself institutionally and in exercising its rights, especially the right to assembly and the right to strike.

114.    With respect to the right to assembly, the various reports the ILO Committee on Labor Union Freedom, of the Special Rapporteur of the United Nations Commission on Human Rights, and even of the IACHR have dealt successively with many cases in which the right to assembly of workers in Chile has been violated. Suffice it to cite in this regard the right “to assemble peacefully without prior authorization”, recognized by both the 1925 and the 1980 constitutions  [41], which it has not been possible for workers to exercise on the 1st of May on the occasion of International Labor Day during the past 12 years.  [42]

115.    With respect to the right to strike, the legal, economic and political limitations noted above have meant that throughout this period there have been very few strikes and they have been of little importance.  In the agricultural sector, where wage earners can lose all their privileges, including their home, there has not been a single strike. In the urban sector, there was an average of 31 strikes annually in the two-year period of 1979-81.  As a benchmark, during the period of 1965-1967 there was an average of 1,003 strikes annually.  Furthermore, in the strikes in the two-year period 1979-1981, the increases obtained over and above the counter-offers of the employers were minimal or non-existent.  This shows the ineffectiveness in practice of the right to strike for workers.  But during the period 1981-1985 the situation has been much worse; because of the crisis and high unemployment, strikes have been virtually non-existent

b.       Workers Federations and Confederations

116.    Despite the limitations noted, workers federations and even confederations have arisen in Chile.  Despite the official repression and legislative prohibitions that can be adopted against them, they have survived thanks to the courage of their leaders and the help of international solidarity.

117.    It is a fact that the Labor Plan, as studied, institutionalized a disassociation between the leaders of the union federations and confederations and their membership by denying these leaders any role in collective bargaining; but the political-ideological struggle that has been emerging in Chile has meant that the ideological trends into which the international labor union movement is divided have found expression and had repercussions in Chile.

118.    A few years after the military coup five large trade union groups were formed, and at present are: the Central Democrática de Trabajadores, earlier known as The Group of Ten, and then as the Union Democrática de Trabajadores, which at the international level is connected with the Inter-American Regional Organization of Labor (ORIT) and the International Confederation of Free Trade Union Organizations (CIOLS); the Coordinadora Nacional Sindical (CNS), which, although it is not formally affiliated to any international organization, maintains close links with the CIOLS and some of them leaders with the World Trade Union Federation (FSM); the Frente Unido de Trabajadores (FUT), which is affiliated to the World Confederation of Workers (CNT) and the Central Latino Americana de Trabajadores (CLAT); in addition, the Confederación de Empleados Particulares de Chile (CEPCH) and the Confederación de Trabajadores del Cobre, are the only ones that have remained independent of political parties and the international ideological struggle.

119.    On June 3. 1983, the five above-mentioned associations established the Comando Nacional de Trabajadores and, in the press release on its establishment, stated that their objective was the reestablishment “of democracy and the free exercise of labor union and civic rights” through “the termination of the state of emergency”; the repeal of transitory article 24 of the Constitution of 1980; full information concerning the preparation of legislation; return of exiles; the repeal of measures and provisions concerning censorship of the media; the preparation of a short-term emergency plan for ending unemployment; the restoration of all the labor and social security legislation in force in 1973; the adjustment of wages and salaries for all workers in the public and private sector; ... and the right of the opposition to use radio and television networks and to insert paid announcements the press.” [43] Later, the “Comando Nacional de Trabajadores” adhered to the National Agreement for the Transition to Full Democracy.  [44]

D.       CONCLUSIONS

120.    From what has already been stated in this chapter, it may be concluded that the legislation adopted by the Government of Chile is not consistent with the principles generally recognized in international law as being inherent in labor union freedom, stipulated in world and inter-American instruments, ratified or approved by Chile, that is: the right of every individual to establish labor unions for the purpose of promoting and protecting his economic and social rights; the right of labor unions to operate without impediments and without other limitations than those prescribed by law and necessary in a democratic society; the right to collective bargaining of employment contracts and the right of workers to strike in defense of their occupational interests.

121.    Throughout this lengthy period, workers have had virtually no part in the preparation of labor laws.

122.    In the opinion of the Commission, serious “gaps” and limitations on the rights of workers still persist in the labor legislation enacted by the military government.  Thus, for example, appropriate legislation has not yet been adopted for the purpose of eliminating or limiting collective dismissals; collective bargaining by branch or activity and throughout the labor union spectrum has not been authorized for the purpose of asserting this basic right, at least not in the sectors in which bargaining on an enterprise basis is virtually impossible, for example, in commerce and agriculture.

123.    The Commission believes that, within this general framework limiting labor union freedom, Law No 18,372 is an example of progress in this field compared with earlier laws of the military government concerning employment contracts such as Decree Law No. 2200.

124.    The successive amendments to Chilean labor legislation since 1973, which have changed in whole or in part that in effect prior to that year and the law enacted by the present government, constitute an index of marked insecurity in the exercise of labor union freedom and a framework of confusion about the application and scope of some laws with respect to others.  Chilean labor legislation clearly shows many inconsistencies and tacit derogations that make possible, in the shadow of an apparent legality, the execution of measures contrary to the right of association and labor union freedom, to the consequent detriment of the working classes of the country.

125.    The behavior of the Government of Chile, even after the “Labor Plan”, is marked by the enactment of legislation apparently favorable to labor union freedom, although in essence it is restrictive because of the persistence of a policy of violations of the right of association, since the organization of labor unions and the functions and powers of labor union federations and confederations are limited.

126.     The abolition of the labor courts has also had an adverse effect on workers, since they were replaced by the ordinary courts, which rely on presuppositions such as equality of the parties and freedom of contract, which cannot in justice be applicable to labor relations.

127.    During these 12 years the Chilean labor union movement has faced serious obstacles, which derive not only from the legislation enacted by the government, but also from the economic and political situation prevailing in the country.  These obstacles include a high rate of unemployment, serious violations of the human rights of trade union officials, many of whom have disappeared, have been expelled from the country, arrested or sent into enforced residence, and difficulties in exercising the right to assembly and strike.

128.    Nevertheless, it should be emphasized that a labor union movement has been reestablished in Chile--as expressed especially through the five major workers federations and confederations--which, despite the existing obstacles and limitations and the ideological differences between them, have been able to reach agreements to defend the rights of workers and to struggle to re-establish democracy in Chile.

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