Ratified treaties¹

Freedom of association/ Dismissal of workers with trade union privilege/ Act of anti-union discrimination/ Use of international law as a guide for interpreting domestic law

Several workers, who had been designated as workers’ representatives before the formation of the trade union, made an application for having been unjustly dismissed. The Court of first instance judged that the applicants were already covered by the trade union privilege and considered their dismissal unjustified. However, the Appellate Court overturned the initial decision. Then, the workers requested the Supreme Court to annul that decision and to give a new decision confirming that of the first instance.

In order to determine whether the protection of trade union privilege covered workers that were candidates for workers’ representatives even before the formation of the trade union, the Court examined the Labour Code and found that that text contained provisions that could be contradictory because, on the one hand, that would establish that the trade union privilege was created at the time of the holding of the founding assembly and, on the other hand, that the privilege protected the candidates before the election, from the time of communication in writing of the date of the election.

Given this situation, the Supreme Court interpreted domestic provisions in the light of ILO Conventions Nos. 87, 98 and 135, in order to infer that, as guarantee of the respect of the right to elect freely their representatives, in order to take full effect, the trade union privilege must necessarily cover the period immediately prior to the formation of the trade union because in the contrary case it would not be ensuring the same right of association.

Thus, the Court decided in the following manner:

“(…) It is quite clear that, faced with any doubts that could offer our domestic law, the provisions of international norms contained in International Labour Conventions Nos. 87, 98 and 135 should be considered, especially taking into account the provisions of Article 5 of the Constitution of the Republic.²

Article 3 of Convention No. 87 concerning Freedom of Association and the Protection of the Right to Organise refers to the autonomy of these organizations, one aspect of which is that of freely electing its representatives. It appears obvious that if because of the formation of the trade union and the election of its leaders, the leaders were dismissed by decision of the undertaking, and were not sustained, our legislation would not be in line with international provisions.”

Likewise, the Court referred to Article 1(1) and Article 1(2)(a) of ILO Convention No. 98 on the Right to Organise and Collective Bargaining,³ and to Article 1 of ILO Convention No. 135 on Workers’ Representatives.⁴

Thus, the Supreme Court of Chile declared the dismissal null because of anti-union discrimination, interpreting the Labour Code in the light of ILO Conventions Nos. 87, 98 and 135, pointing out that in order to have its full effect on the autonomy of the trade union, the trade union privilege also covers the period immediately prior to the formation of the trade union.