Supreme Court of Chile, Carlos Castro Cortés v. Wackenhut - Chile, 1 August 2001, Case No. 2549-01
Political Constitution of the Republic of Chile
Article 5, paragraph 2
Exercise of sovereignty recognizes the limitation of respect for essential rights stemming from human nature. It is the duty of the Government to respect and promote those rights, which are guaranteed by this Constitution and the international treaties ratified by Chile that are in force.
Chile
Dismissal , Freedom of association
Reference to international law to strengthen a decision based on domestic law
Ratified treaties1
Dismissal of a trade union leader/ Act of anti-union discrimination/ Reference to international law to strengthen a decision based on domestic law
A worker made an application against his employer for having been dismissed because of his condition of union leader, requesting that his immediate reinstatement in the employment be ordered. The Court of first instance accepted the request and, likewise, the Appellate Court upheld it, after which the employer made application, asking the Supreme Court to annul that decision.
In order to determine whether the dismissal of the trade union leader would qualify as anti-union discrimination, the Supreme Court applied the Labour Code2 and the National Constitution.3 In addition, it made reference to ILO Conventions Nos. 87 and 98 to stress the fundamental character of the autonomy of trade unions and the prohibition of anti-trade union discriminatory dismissal, stating that the trade union leader was protected by trade union privilege.
The Court mentioned the international instruments in the following manner:
“That Article 1 of ILO Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively provides that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. (…) This norm of international law alludes to anti-trade union discriminatory dismissal, which must not produce the effect of breaking the labour relationship.
It has been warned that this provision is a necessary and indispensable complement for the autonomy of trade unions, in accordance with the terms of ILO Convention No. 87, whose Article 3 alludes to the basic principle according to which workers’ organizations have the right to elect freely their representatives.”
As a result, the Supreme Court of Chile, after having based its decision on domestic case law, referred to ILO Conventions Nos. 87 and 98 to stress the basic character of the protection of the union representatives against any discriminatory anti-union act. On this basis, the Court rejected the appeal and confirmed the nullity of the dismissal.
1 ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98).
2 Article 243 of the Labour Code of Chile establishes the privilege granted to union leaders already elected, from the date of the election until six months after having left that office.
3 Article 19(19) of the Constitution of Chile states that: "The law shall provide for the mechanisms to ensure the autonomy of these organizations [of trade unions]".
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