Definitive Report - Report No 380, October 2016

Case No 3108 (Chile) - Complaint date: 18-DEC-14 - Closed

Allegations: The complainant alleges anti-union practices, including the dismissal of an official, obstacles to visits by officials to members, anti-union interpretation of the rules on union leave, constraints on the representation of members in cases brought and interference in freedom of union membership, as well as the absence of negotiating procedures and impartial mechanisms for hearing labour disputes, including anti-union discrimination

1. 163. The complaint is contained in the communications received on 18 December 2014 and 9 March 2015 from the National Federation of the Public Prosecutor’s Office of Chile (FENAMIP), supported by the National Association of Prosecutor Employees (ANEF).
2. 164. The Government sent its observations in a communication dated 10 December 2015.
3. 165. 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. Allegations by the complainant

1. 166. In its communications of 18 December 2014 and 9 March 2015, FENAMIP alleges anti-union practices including the dismissal of an official, obstacles to visits by officials to members, anti-union interpretation of the rules on union leave, constraints on the representation of members in cases brought and interference in freedom of union membership, as well as the absence of negotiating procedures and impartial mechanisms for hearing labour disputes, including anti-union discrimination.
2. 167. The complainant alleges obstacles to the work of trade union officials on the part of the Public Prosecutor’s Office, through constraints on their visits to members, as well as undue restrictions on the capacity to organize meetings and assemblies during the working day. The complainant alleges that: (i) on 19 March 2013, the Administrator of the San Bernardo Local Prosecutor’s Office informed two officials who were hoping to visit their members that the meetings could only take place on Tuesdays and Thursdays, and that information should be provided on the subjects that would be raised at the meetings; and (ii) in response to the formal complaint raised by the complainant against this action by the authority in Instruction FR (4) No. 175-2013, the Regional Prosecutor of the Western Metropolitan Regional Prosecutor’s Office stated that as per article 37 of Law 19.296 on associations of state administration officials, prior agreement is required with the employing institution to hold assemblies and meetings during working hours. The Instruction requires a formal request to the Regional Executive Director, with at least one week’s notice of the date of the meeting or assembly. The complainant considers the interpretation of the rule to be incorrect, given that the rule refers to assemblies and not to simple meetings to discuss matters of union concern, nor to simple visits and conversations between officials and members in workplaces. In FENAMIP’s opinion, the Instruction is authoritarian in nature and does not leave the door open to negotiation nor to the most minimal agreement, besides establishing an unreasonable timeframe that does not allow urgent meetings to be held and seeks to control union activity. Similarly, it considers that placing an obligation to request authorization from the authority whenever an official wishes to meet a member constitutes an abnormal breach of freedom of association.
3. 168. The complainant alleges anti-union actions by the authorities of the Public Prosecutor’s Office in June 2014 in response to the submission of an appeal for protection by FENAMIP against a general instruction by the Prosecutor-Attorney of the Talagante Local Prosecutor’s Office (according to the complainant, the instruction placed a block on extended vacation or leave and cancelled that which had already been granted). The complainant alleges that: (i) even though the appeal had not been officially received, it was communicated to the Prosecutor concerned through informal channels; (ii) the Prosecutor summoned the officials to a meeting on 13 June 2014 to express his discontent and disappointment with the lodging of the appeal; (iii) from his head office email address, the Prosecutor sent a copy of the appeal to officials and prosecutors with the intention of making clear his unhappiness and the seriousness of the pressure he was placing on the members; (iv) the replacement Administrator of the Public Prosecutor’s Office, Ms Carmen Gloria Ríos, urged and encouraged workers to sign a letter rejecting the appeal; and (v) as a result, in order to denounce these facts the complainant lodged an appeal before the San Miguel Court of Appeal.
4. 169. The complainant alleges constraints placed by the authorities on the capacity to represent its members in complaints, in particular through the requirement to produce a signed authorization and, consequently, the non-recognition of the representation exercised by officials’ associations. The complainant denounces the fact that, in response to the harassment at work experienced by the official, Ms Lugarda Andrade, the authorities called into question the complainant’s capacity to bring an action in court for labour protection. The complainant alleges that in response to its request to reinstate the official dismissed, the Public Prosecutor stated that the complainant lacked the necessary representation. Likewise, the complainant mentions that in February 2015 at the Libertado Bernardo O’Higgins Regional Prosecutor’s Office, in relation to a complaint concerning irregularities on the part of a female official, the Regional Prosecutor made his assistance dependent on whether the official was in contact with the union leaders of her officials’ association; and that in the same month at the Los Vilos Local Prosecutor’s Office an officials’ association was refused the possibility to represent a member official who was the victim of harassment at work, and a request was made for signed authorization to be produced for these purposes.
5. 170. The complainant denounces the anti-union dismissal of the union leader, Mr Mario Gutiérrez Ollarzú. The complainant alleges that Mr Gutiérrez Ollarzú led its actions to demonstrate the rejection of the project to strengthen the Public Prosecutor’s Office, whereby he had to carry out acts and issue statements that were not to the liking of the Public Prosecutor, generating tensions between the two parties. At that time, Mr Gutiérrez Ollarzú was involved in a criminal case, as a result of which he was tried and obliged to fulfil a series of conditions, aimed at finding an alternative solution to the criminal proceedings (so-called “conditional suspension of proceedings”, through which, if the indicted person satisfies the conditions within a period specified in the respective decision, the criminal proceedings are definitively dismissed). The complainant alleges that the Public Prosecutor took advantage of this situation to terminate Mr Gutiérrez Ollarzú’s employment, invoking sudden incapacity, in accordance with the provisions of articles 60 and 65 of the Basic Law on the Public Prosecutor’s Office, in relation to article 265 of the Basic Courts Code and article 35 of the Staff Regulations for Officials of the Public Prosecutor’s Office. The complainant alleges that sudden incapacity does not exist in legislation, that the reason did not apply to the official, since he was a staff member, and that it only appeared to have been applied once in the history of the Public Prosecutor’s Office, despite the fact that other similar cases had existed. FENAMIP alleges that only on this occasion was the decision taken to terminate the employment, when the situation concerned a union official who led a movement of great relevance and with the aim of weakening that movement. Similarly, the complainant alleges that the rules stipulated by the law regarding trade union immunity were not observed.
6. 171. The complainant denounces the anti-union interpretation of the rules and instructions applicable to the hours of union leave. FENAMIP indicates that in 2009 the Public Prosecutor had stated in Instruction No. 369/2009 that the respective head offices were obliged to grant to the directors of associations the leave necessary to absent themselves from their work to carry out their functions, which could not be less than 22 hours per week for national associations or 11 hours per week for regional associations. The complainant alleges that, in contrast with this provision, through Instruction No. 152/2014 the new National Executive Director requested union officials to provide advance information on the use of their leave time for the purposes of coordinating the sound operation of the institution and the due registration of the union hours established by the law. The complainant considers that the law had been interpreted correctly by the Public Prosecutor’s Office, whereby the hours cannot be less than the values described (in other words, the law establishes minimum values with no limit); and that the National Executive Director made a fresh interpretation which considers these to be maximum values – illegally contradicting the Public Prosecutor and with the aim of hindering the work of the workers’ representatives. The complainant considers that the instruction issued by the Public Prosecutor recognizes that leave is a right of union officials of which they may avail themselves in the manner and conditions they deem relevant, provided they simply inform the authority of the use in question, whereby such information should be coordinated with the officials and not imposed in line with specific interpretations as claimed by the National Executive Director.
7. 172. The complainant denounces institutional interventions designed to generate disputes between workers’ organizations and not to recognize the right of regional associations to make officials from other regions members. The complainant alleges that, pursuant to a request submitted by another union association of the Public Prosecutor’s Office (which considered it inappropriate for a regional association to be able to make officials from other regions members), the Public Prosecutor’s Office requested the Labour Department to state whether activities carried out by directors of regional officials’ associations, in jurisdictions of regions separate from those in which they were set up, should be considered to be union activities, and also whether it was appropriate to make membership deductions from the remuneration of officials who have decided to join an association with its headquarters in a region other than that in which the official provides his or her services. The complainant states that subject to the principle of self-regulation, the charters of its member associations allow officials from other regions to become members, and recalls that when these charters were submitted to the corresponding labour inspectorate, that body did not make any observations on them. It considers that as a result, and since it is not prohibited by law, the membership of officials who perform duties in other regions is legally acceptable, and that a public entity cannot seek to characterize as union-related or otherwise the actions or tasks performed by union officials in the exercise of their duties in other regions.
8. 173. The complainant denounces the fact that both the administrative authorities (Labour Department and National Auditor General’s Office) and judicial authorities have stated that they are not competent to deal with matters concerning labour relations within the Public Prosecutor’s Office, and that there is only one recognized means of representation regarding labour disputes on employment conditions within that Office: the sole internal authority is the National Executive Directorate, which establishes the service regulations, and acts as judge and party. Consequently, the complainant alleges that there is no competent impartial organization such as the judiciary to hear labour disputes between officials or prosecutors and the Public Prosecutor’s Office (as an example, the complainant refers to the case of the labour dispute involving Ms Miriam Cruz who, in November 2013, requested the unilateral amendment of her contract, and in relation to which the Court of Appeal confirmed that the labour courts were not competent, as alleged by the State Defence Council). In this connection, the complainant denounces the fact that, in response to different requests submitted by the complainant alleging unfair or anti-union practices and infringement of union rights, the State Defence Council confirmed the lack of competence of the labour courts to hear work-related cases brought by officials and stated that the complainant “is not specifically a union association” – but an association of officials regulated by bodies of rules separate from the Labour Code – “for which ‘reason’ ‘no anti-union practices can exist’ in relation thereto”. The complainant alleges that the responses of the State Defence Council to these requests, the texts of which are attached to the complaint, imply that associations of officials lack any trade union rights and protection by the ordinary courts of law in respect of anti-union practices. Similarly, the complainant alleges that working conditions in the Public Prosecutor’s Office are not the subject of negotiation but the result of an imposition and that there are no internal dispute settlement procedures or internal negotiating tools. As an example of constraints placed on the exercise of freedom of association by the Public Prosecutor’s Office, the complainant refers to the fact that in 2012 it was forced to seek recourse to the Santiago Court of Appeal since the Public Prosecutor’s Office had refused to hand over the information necessary to defend the rights of its members. In conclusion, the complainant considers that the requirements of Articles 7 and 8 of Convention No. 151, ratified by Chile, which require the adoption of negotiating procedures or other methods allowing representatives of public employees to participate in the determination of conditions of employment, as well as mechanisms to settle disputes arising in connection with the determination of such conditions so as to ensure the confidence of the parties involved, are not satisfied.

B. The Government’s reply

1. 174. In its communication of 10 December 2015, the Government forwards its observations, based mainly on the response of the Public Prosecutor’s Office to the allegations. The Public Prosecutor’s Office states that 76.75 per cent of its officials are members of an officials’ association and that, out of the total number of members, 56.65 per cent are members of the National Association of Officials of the Public Prosecutor’s Office (ANFUMIP) and 43.35 per cent belong to the complainant organization.
2. 175. As regards the allegation of obstacles to the work of union officials and undue restrictions on the capacity to organize meetings during the working day, the Public Prosecutor’s Office considers that the events that occurred do not constitute an obstacle to officials’ activity, nor may they be considered to be intervention in trade union activity. It recalls that the officials concerned entered the premises of the San Bernardo Local Prosecutor’s Office on 19 March 2013, without giving prior notice to the heads of that unit, on the assumption that they were able to interrupt, without authorization or notice, the performance of its members’ work during the working day. The Public Prosecutor’s Office states that Law 19.296 on associations of officials establishes what its rights are and, in relation to meetings, its states that meetings may be held during the working day provided they have been agreed in advance with the employing institution (the same treatment is accorded to private sector workers by the Labour Code). The Public Prosecutor’s Office adds that arrangements have been made for meetings to be held during working hours and that the authorities of the Regional Prosecutor’s Office concerned have periodic meetings with the officials of the Association of Officials of the Western Metropolitan Regional Prosecutor’s Office (ASFFRO), an association affiliated to the complainant, which deal with matters of interest to the associations and seek to reach agreement on the most appropriate measures for officials. According to the Public Prosecutor’s Office, within the framework of these meetings an agreement was reached with ASFFRO representatives for the institution to make arrangements to hold meetings with its members on institutional premises and also during the working day, with a requirement to request the relevant authorization. The Public Prosecutor’s Office adds that ASFFRO has requested authorizations to hold meetings during the working day and that those authorizations have been granted. The Public Prosecutor’s Office considers that the unplanned intervention of officials of the complainant organization in March 2013 without prior warning or notice did not respect the agreement that the authorities had reached with its member organization, ASFFRO. Similarly, the Public Prosecutor’s Office denies that officials of associations have the right to meet their members during working hours without requesting the authority’s authorization. It recalls that in accordance with Article 6 of Convention No. 151, the granting of facilities to representatives of organizations shall not impair the efficient operation of the administration or service concerned. In conclusion, the Public Prosecutor’s Office recalls that the institution affords greater facilities than those required by law (such as technological resources, materials and physical spaces to hold meetings inside the institution), that it does not make the holding of meetings subject to prior authorization and that only the meetings which it wishes to hold during working hours are subject to a feasibility analysis regarding the timeliness and maintenance of institutional functions, while emphasizing that in no case is an analysis conducted of the matters to be discussed at those meetings.
3. 176. As regards the allegation of anti-union actions on the part of the authorities of the Public Prosecutor’s Office in June 2014 in the Talagante Local Prosecutor’s Office in response to an appeal for protection, the Government calls into question the account and description of the facts and, while it considers that there was no anti-union action of any kind, states that: (i) the general instruction in question was a general mailing sent on 13 May 2014 by the Chief Prosecutor, in which authorizations for time off or leave were made dependent on the processing of a number of cases that were being registered with no action taken; (ii) the meeting of 13 June was intended to discuss other subjects but, in the end, in view of the discontent that appeared to have been generated by the mailing concerning days off and leave which gave rise to the appeal, the Chief Prosecutor expressed his regret since it had not been his intention to cause such a reaction but merely to settle a work-related procedure; he also regretted that such discontent had not been expressed to him directly (the Government specifies that this was not a reproach as regards anyone’s conduct or actions); (iii) the Chief Prosecutor had become aware of the appeal through the permanent monitoring by the Public Prosecutor’s Office of the appeals lodged in the courts (the Government also specifies that this information is public and that from the time appeals are lodged the Court publishes the details on its website, which is accessible to all); (iv) the Chief Prosecutor simply forwarded the email which he received to all the officials, containing details of the lodging of the appeal but did not include any phrase or commentary and did not mention the subject again either orally or in writing; (v) the lodging of the appeal surprised many officials, some of whom expressed in emails their disagreement with the management of the association concerning the lodging of the appeal; (vi) Ms Carmen Torres Ríos, who together with other officials (including one prominent union leader) signed a letter expressing her opinion and rejecting the appeal, was not serving at the time as Administrator of the Public Prosecutor’s Office (contrary to the complainant’s claim) and signed the letter as a member of the officials’ association; (vii) in response to a denunciation of the facts the Regional Prosecutor ordered by Decision of 27 June 2014 the launching of an administrative investigation, which ended in the case being dismissed owing to the fact that there was no proof of sanctionable conduct (in the investigation many officials expressed an opinion and none of them coincided with the complainant’s version); (viii) FENAMIP brought a legal case based on the same facts but did not present any witnesses to support its statements; (ix) the court of first instance suggested to FENAMIP that it withdraw its appeal but, as FENAMIP did not withdraw the case, the court rejected the appeal since it considered that it was not competent to take a decision on the facts that FENAMIP, in its capacity as an association of officials, denounced as an anti-union practice; and (x) the Court of Appeal overturned the decision and ordered the case to continue; a hearing was held on 27 June 2015 at which the Court proposed reconciliation, consisting of a statement by the Public Prosecutor’s Office to the effect that it intended to offer respect and consideration for workers’ individual and union rights (and making it completely clear that the complainant was in agreement with this solution, pending the decision to be adopted in this regard by the Public Prosecutor and the State Defence Council).
4. 177. As regards the allegations of constraints on the representation of members in work-related cases, the Government indicates, in relation to the cases mentioned concerning the Libertado Bernardo O’Higgins Regional Prosecutor’s Office and the Los Vilos Local Prosecutor’s Office, that the authorities worked jointly with the complainant in the search for solutions, that an administrative investigation was launched and that the prosecutors concerned by the facts denounced (not linked to anti-union discrimination) were sanctioned. As regards the case of harassment at work against Ms Andrade, the Government states that Ms Andrade brought legal action on three occasions and only on one of those occasions did the Supreme Court state that the court was not competent to deal with such matters. On the other two occasions, its protection actions were examined by the courts but, since there was no legal or factual basis, the cases were set aside on their merits, for which reason the claimed lack of protection for the officials alleged by the complainant does not appear to have been proven. The Government emphasizes that Ms Andrade’s situation does not relate to any allegation of discrimination or anti-union practice. Similarly, the Government specifies that Ms Andrade only became a member of a FENAMIP-based association following her dismissal. As regards the alleged denial of the complainant’s capacity to represent Ms Andrade as its member, the Government indicates that, in accordance with the law, associations of officials do not have the right to represent their members by asking for or requesting such personal rights as may accrue to them, unless a legally approved mandate therefor is granted. The Government adds that the complainant did not attach any documents proving that it had received such a mandate from Ms Andrade, that its submission had been presented “on behalf of the Federation”, and that the affected person had denounced the alleged unjustified dismissal individually to request compensation (but not the reinstatement requested by FENAMIP) – this would appear to demonstrate the lack of consistency between the claims made by the complainant organization and those expressed by the person it supposedly represented.
5. 178. As to the allegation of anti-union dismissal of the union official, Mr Mario Gutiérrez Ollarzú, the Government specifies firstly that the draft law criticized by the complainant was also rejected by the Public Prosecutor – Mr Gutiérrez Ollarzú and the Public Prosecutor retained similar opinions and the Public Prosecutor called a working meeting with the participation of all the organizations of officials and prosecutors, at which an agreement was reached on an alternative draft to be put forward to the Government. As a result, the Government refutes the alleged ill-will and states that there cannot have been any reason to weaken the trade-union action, since the union’s aims coincided with the position of the Public Prosecutor. As regards the criminal proceedings, the Government states that, on 18 March 2014, Mr Gutiérrez Ollarzú overturned the vehicle he was driving and following two breathalyser tests, it was proven that he was driving in a state of intoxication, which is a crime under Chilean law. The Government states that in the criminal case Mr Gutiérrez Ollarzú benefited from a conditional suspension of the proceedings. In so doing – since there was no intervention from the authorities – the official invoked the reason of sudden incapacity established by law. In that regard, the Government specifies that the Staff Regulations for Officials of the Public Prosecutor’s Office do not establish the reason but the Regulations include the legal provisions. The Government provides detailed explanations as to how, under articles 60 and 65 of the Basic Law on the Public Prosecutor’s Office and articles 265 and 332 of the Basic Code of Courts, the conditional suspension of criminal proceedings constitutes a reason for incapacity to be appointed a prosecutor or official of the Public Prosecutor’s Office and, consequently, termination of duties or of an employment contract, where a cause of incapacity suddenly arises while employed. The Government states that, as a result, in strict compliance with the law, the Public Prosecutor was obliged to order the termination of Mr Gutiérrez Ollarzú’s employment contract. Claiming the alleged unlawful nature of the Public Prosecutor’s decision, Mr Gutiérrez Ollarzú lodged an appeal before the First Labour Court of Santiago. The Government stated that, within the framework of that ruling, on 4 August 2015 Mr Gutiérrez Ollarzú undertook a transaction, and renounced all his allegations on the supposed illegality of the dismissal in exchange for receiving compensation of around 7,500,000 Chilean pesos (CLP) (approximating to US$11,300).
6. 179. In relation to the allegation of anti-union interpretation of the rules and instructions relating to union leave, the Government recalls firstly the applicable rules, contained in Law 19.296, which state that: (i) directors have the right to leave of at least 11 or 22 hours per week, according to the type of organization (regional or national) – hours which are considered worked and are remunerated by the institution; and (ii) there is also additional leave – some of which must be remunerated by the institutions and other leave by the associations. The Government denies that there is any contradiction between the communications of the Public Prosecutor – who recalls the rules on the minimum number of hours granted per week to be paid by the institution, established to protect the associations of officials – and that of the National Executive Director – which simply recalls the obligation to communicate the use of leave (an obligation which the complainant acknowledges in its communication). In this regard, the Government indicates that the complainant continues to fail to satisfy this obligation, and simply sends an email once a week in which it states that its directors will make use of the leave, without allowing the institutional authority to know when the official will be available to perform his or her duties (the Public Prosecutor’s Office specifies that such abusive conduct is tolerated by the institutional authority, as it wishes to strengthen the organizations of officials). The Government recalls that the officials of the complainant organization enjoy a minimum of 33 hours per week (11 for a regional organization and 22 for a national organization) out of the 44-hour working week. The Government considers that what the complainant is seeking is to enjoy unlimited union leave at the expense of the institution – which is incompatible with the aforementioned legal rules on leave.
7. 180. As concerns the allegation of institutional interventions so as to cause disputes between workers’ organizations in relation to the possibility that regional associations may make workers from other regions members, the Public Prosecutor’s Office denies having interfered so as to instigate or further the dispute that has arisen. The Public Prosecutor’s Office states that the dispute is between organizations of officials, in which the only intervention by the institutional authority was that of requesting a decision from the Labour Department, merely as a result of a denunciation made by another officials’ association – ANFUMIP. The Public Prosecutor’s Office states that, in response to the practice of associations brought together in the complainant organization, whereby such associations sought to make officials from regions separate from those in which they were set up as members, officials who were members of ANFUMIP cancelled their membership in order to join these other associations. Consequently, in 2012, ANFUMIP denounced the complainant for anti-union practices and alleged that these new memberships were illegal. On 3 May 2012, the Labour Department responded to this complaint, stating that it did not have jurisdiction to take a decision on anti-union practices of officials’ associations and added, in its conclusions, that “in legal terms it is unacceptable for an official of the Public Prosecutor’s Office to participate in the establishment of, or to join, a regional association linked to a jurisdiction separate from that in which he or she provides services”. The Government states that, despite this ruling the complainant did not adopt any measures to rectify what it was accused of, for which reason in July 2014 ANFUMIP requested a decision from the Public Prosecutor. In response to this request, the Public Prosecutor requested a decision from the Labour Department, so as not to become involved in a dispute between organizations of officials. In November 2014 the Labour Department said in response that it did not have the jurisdiction to intervene in a situation such as that which had arisen in relation to memberships contracted in contravention of the law; the Department added that this was without prejudice to the right of those affected to challenge the validity of those memberships. On the basis of this decision, the Public Prosecutor’s Office resolved not to order a disciplinary investigation into the denunciation made by ANFUMIP. The Public Prosecutor’s Office adds that despite the clear interpretation made by the Labour Department of this matter, the complainant has not taken any action to correct the faults identified.
8. 181. As regards the allegations that impartial supervisory authorities to monitor work-related abuses, including anti-union discrimination, are absent, and internal negotiating tools, including dispute settlement processes, do not exist, the Public Prosecutor’s Office states that the courts’ lack of jurisdiction to hear the cases brought by the association of officials or its directors are the result of an error in the chosen procedural strategy. In relation to one of the cases mentioned by the complainant to illustrate the lack of jurisdiction alleged by the State Defence Council (the case of the labour dispute involving Ms Miriam Cruz), the Government indicates that the Supreme Court revoked the lack of jurisdiction that had been accepted by the Court of Appeal and declared that the Labour Court was competent, stating that the alleged lack of protection did not in fact exist. As regards the allegations of complaints for failure to hand over information, the Public Prosecutor’s Office confirms that the complainant was obliged to seek recourse to the Court of Appeal to request that certain background materials be handed over, but states that this was a result of the obligation imposed by the Transparency Act, which requires the institution to consult the affected parties – since those parties objected, the Public Prosecutor’s Office was forced to refuse the handover, and so recourse to the Court to settle the matter was the result of the opposition of an affected third party. The Government specifies also that the complainant receives all the information it requests on subjects of interest to it. As to the general conclusions regarding lack of protection put forward by the complainant, the Public Prosecutor’s Office emphasizes that the disputes may be settled by the courts and that the rejection of some of the cases brought does not mean that there is a lack of protection mechanisms, but only faults in the way in which its requests or complaints are made, or the lack of grounds therefor.
9. 182. In relation to the allusions to imposition and lack of negotiation and dialogue contained in different allegations made by the complainant, the Public Prosecutor’s Office refers to various actions in which the authorities have had relations with the associations of officials during the past few years, as evidence of the collaboration with these associations since they were set up – showing respect for their rights and in search of agreed proposals or solutions to problems or matters of interest for officials. The actions referred to include: (i) a working meeting in 2014 with the participation of all the associations to prepare a proposal for strengthening the Public Prosecutor’s Office, with the participation of FENAMIP and which culminated in an agreed draft law; (ii) a working meeting for the implementation of the Law to Strengthen the Public Prosecutor’s Office – a meeting which is fully operational; (iii) a working meeting for the regulation of labour relations, called in August 2014, on the initiative of ANFUMIP to prepare a regulation proposal to solve the labour disputes originating within the Public Prosecutor’s Office (the complainant initially refused to participate, joined in the process later and stated finally that it did not subscribe to the proposed documents (documents on labour relations, monitoring and reporting of work-related and sexual harassment, and code of good labour treatment)), since if it subscribed to those documents its aim of obtaining legal amendments allowing labour disputes in the Public Prosecutor’s Office to be monitored by external bodies may be affected; (iv) a working meeting on prosecutor’s office administrators (with participation of all the officials’ organizations); (v) various meetings in 2014 and 2015 with the different associations of officials and others exclusively with the complainant to deal with subjects of interest to it, proving that associations are hosted whenever they so request; (vi) responses to various requests and consultations by the complainant, proving that a response is given to all the requests received and that where there are differences the questions are settled by the courts; and (vii) arrangements made for the associations of officials above and beyond legal requirements (for example, use of institutional mail servers, use of Public Prosecutor’s Office premises for assemblies and other types of meetings during the working day or payment of expenses to directors of associations where they have to participate in meetings with the authorities).

The Committee’s conclusions

1. 183. The Committee observes that the complaint concerns allegations of anti-union practices, including the dismissal of an official, obstacles to visits by officials to members, anti-union interpretation of the rules on union leave, constraints on the representation of members in their requests and interference in freedom of membership, as well as the absence of negotiating procedures and impartial mechanisms for hearing labour disputes, including anti-union discrimination.
2. 184. As regards the allegation of obstacles to the work of trade union officials and of undue restrictions on the capacity to undertake visits and organize meetings during the working day, the Committee observes that, on the one hand, the complainant alleges the unilateral imposition of restrictions on the capacity of officials to gain access to its members, subject to the requirement of prior agreement with one week’s notice for any meeting, including simple visits. On the other hand, the Committee observes that the Government considers that the complainant is defending a non-existent right to be able to disrupt without notice or prior agreement the work of its members during working hours. In this regard, the Committee must recall both the principle through which workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation functions, and also the principle via which the right of access to the workplace should not be exercised to the detriment of the efficient functioning of the administration or public institutions concerned. Therefore, in such cases the Committee has often stated that the workers’ organizations concerned and the employer should strive to reach agreements so that access to workplaces, during and outside working hours, should be granted to workers’ organizations without impairing the efficient functioning of the administration of the public institution concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1104 and 1109]. In relation to this complaint, the Committee notes that the Government: states that prior to the facts denounced the authorities had already reached agreements on holding meetings and facilities granted with the regional prosecutor’s organization, which was a member of the complainant organization; specifies that the authorities should simply carry out a feasibility analysis for the meetings to be held during the working day; and indicates that the requested authorizations have been granted and facilities and measures for meetings to be held that go beyond those provided for by law are granted too.
3. 185. As regards the allegation of anti-union actions in the Talagante Local Prosecutor’s Office as a reprisal for the lodging of a protest appeal against a general instruction issued by the Public Prosecutor (public expression of disappointment, circulation of the appeal and instigation of workers to sign a rejection letter are alleged), the Committee notes the information and documentation provided by the Government, denying that the authorities intervened or carried out anti-union actions, including: the measures adopted by the administration to investigate the allegation; and the fact that a conciliation agreement appeared to have been reached at the judicial headquarters (consisting of a statement by the Public Prosecutor’s Office indicating its intention to respect and consider workers’ individual and union rights).
4. 186. As regards two allegations of anti-union actions and constraints on the representation of members in work-related cases before the authorities of the Public Prosecutor’s Office (Libertado Bernardo O’Higgins Regional Prosecutor’s Office and Los Vilos Local Prosecutor’s Office), the Committee notes that according to the Government the authorities worked jointly with the complainant in search of solutions, an administrative investigation was launched and the prosecutors concerned were sanctioned for the facts denounced (unrelated to anti-union discrimination). As to the allegation of the refusal of the capacity to represent a female member (Ms Andrade) in court, the Committee observes that the Government indicates that the officials’ associations are not entitled to act to represent their members by requesting or claiming possible personal rights that they may have, without obtaining a legally approved mandate. Similarly, the Committee notes that, according to the Government, in the case in question the complainant does not appear to have demonstrated that it acted with a mandate from its member and the members seems to have simultaneously put forward a complaint with different claims (the affected party requests compensation and the trade union her reinstatement).
5. 187. As to the allegation of the dismissal of the union official, Mr Gutiérrez Ollarzú, the Committee observes firstly that the complainant organization alleges the anti-union motivation of the dismissal by the Public Prosecutor’s Office in order to weaken the union movement which was questioning a draft law by the Government relating to the Public Prosecutor’s Office. Similarly, it observes that the complainant alleges that the reason put forward for the termination of employment (sudden incapacity where recourse to the conditional suspension of criminal proceedings has been sought) is not covered by law and that the proceedings did not respect the immunity of the trade union official. Secondly, the Committee observes that the Government indicates that the contract was terminated for legal reasons, as a result of the decision to seek recourse to the conditional suspension of criminal proceedings relating to driving in a state of intoxication. In this connection, the Committee notes the detailed information provided by the Government on the legal basis of this case of sudden incapacity. Likewise, the Committee observes that the Government questions that there might have been any kind of anti-union motivation, since the position of the Public Prosecutor coincided with that of the complainant in rejecting the draft law. Finally, the Committee observes that, according to the information and documentation supplied by the Government, within the judicial appeal lodged against the dismissal, an agreement was reached through which Mr Gutiérrez Ollarzú renounced all the allegations of supposed illegality in return for compensation. In these circumstances, the Committee will not pursue its examination of this allegation.
6. 188. As regards the alleged anti-union interpretation of the rules and instructions applicable to the hours of union leave, the Committee notes that according to the Government there is no contradiction or anti-union interpretation in the communications of the competent authorities and that a minimum of 33 hours per week out of the 44-hour working week is granted to officials of the complainant organization. The Committee observes without detecting any contradiction that whereas on the one hand, the Instruction issued by the Public Prosecutor in 2009 had recalled the minimum number of hours of weekly leave that union officials should enjoy under the law, on the other hand the Instruction issued by the National Executive Director in 2014 reiterates the obligation to communicate the use of such leave. In this respect, the Committee must recall the principle whereby the affording of facilities to representatives of public employees, including the granting of time off, has as its corollary ensuring the “efficient operation of the administration or service concerned”. This corollary means that there can be checks on requests for time off for absences during hours of work by the competent authorities solely responsible for the “efficient operation” of their services [see Digest, op. cit., para. 1111]. Consequently, the Committee considers that the communication by the National Executive Director, which recalls the need to satisfy the obligation to communicate the use of hours of union leave, does not infringe the principles of freedom of association.
7. 189. As regards the allegation of institutional interventions in order to generate disputes between workers’ organizations concerning the possibility that regional associations may make workers from other regions members, the Committee notes that the Public Prosecutor’s Office indicates that this is a dispute between organizations of officials, in which the only intervention by the institutional authority was to request a ruling from the Labour Department as a result of a denunciation made by another officials’ association (which was questioning the practice of regional associations making officials from other regions members). The Committee observes that the Labour Department had considered it legally unacceptable for an official from the Public Prosecutor’s Office to participate in the establishment, or to become a member, of a regional association linked to a jurisdiction separate from that where he or she provides services. While it recalls that the Committee is not competent to make recommendations on internal dissensions within a trade union organization, the Committee emphasizes that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions [see Digest, op. cit., paras 333 and 1114]. The Committee requests the Government to take the measures necessary to ensure that the associations of officials of the Public Prosecutor’s Office established in one region may have officials of that Office from other regions as members, if their charters so allow.
8. 190. As to the alleged absence of impartial bodies to settle cases of work-related abuses, including anti-union discrimination, and the non-existence of internal negotiating tools, the Committee notes firstly that the Government states: that there are internal dialogue forums (and provides relevant examples), that the disputes raised can be settled by the courts, that in one of the alleged cases the Supreme Court declared that the labour courts were competent and that, in its opinion, errors had occurred in the complainant’s judicial strategy. Secondly, the Committee observes that the State Defence Council has alleged that the labour courts do not have jurisdiction and has stated that the complainant is not specifically a union association but an association of officials governed by rules and laws separate from the Labour Code “for which reason, no ‘anti-union practices’ can exist in relation thereto”. The Committee recalls that it has pointed out that Article 8 of Convention No. 151 allows a certain flexibility in the choice of procedures for the settlement of disputes concerning public servants on condition that the confidence of the parties involved is ensured. The Committee itself has stated in relation to grievances concerning anti-union practices in both the public and private sectors that such complaints should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but should also be seen to be such by the parties concerned [see Digest, op. cit., para. 778]. In the absence of further clarifications received from the Government on the applicable mechanisms for settling disputes and, in particular, the protection of officials of the Public Prosecutor’s Office against anti-union discrimination, the Committee requests the Government, in the light of the aforementioned principle and within the framework of the application of Convention No. 151 ratified by Chile, to inform the Committee of Experts on the Application of Conventions and Recommendations, to which the legislative aspects of the case are referred, of the dispute settlement mechanisms relating to the determination of employment conditions and of the applicable machinery, remedies and sanctions to ensure that officials of the Public Prosecutor’s Office enjoy adequate protection against any act of anti-union discrimination.
9. 191. Finally, in the light of the foregoing conclusions and taking note with interest of the fact that, according to the Government, there are various bodies for dialogue which deal with issues concerning associations of officials (working meetings, including a meeting to deal with labour relations), the Committee encourages the competent authorities to continue deepening social dialogue with the associations of officials of the Public Prosecutor’s Office in order to promote harmonious collective relations and, in line with the aforementioned principles of freedom of association, to reach shared agreements on the issues that may remain pending in relation to the access of union officials to their members during the working day; the union leave of officials and communication of its use; and the development and use of negotiating procedures between the authorities and associations of officials, and other methods allowing their participation in the determination of employment conditions.

The Committee’s recommendations

1. 192. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the measures necessary to ensure that the associations of officials of the Public Prosecutor’s Office established in one region may have officials of that Office from other regions as members, if their charters so allow.
   • (b) The Committee requests the Government, within the framework of the application of Convention No. 151 ratified by Chile, to inform the Committee of Experts on the Application of Conventions and Recommendations, to which the legislative aspects of the case are referred, of the dispute settlement mechanisms relating to the determination of employment conditions and of the applicable machinery, remedies and sanctions to ensure that officials of the Public Prosecutor’s Office enjoy adequate protection against any act of anti-union discrimination.
   • (c) The Committee encourages the competent authorities to continue deepening social dialogue with the associations of officials of the Public Prosecutor’s Office in order to guarantee the efficient operation of the administration or service concerned, and to promote harmonious collective relations and, in line with the aforementioned principles of freedom of association, to reach shared agreements on the issues that may remain pending in relation to the access of union officials to their members during the working day; the union leave of officials and communication of its use; and the development and use of negotiating procedures between the authorities and associations of officials, and other methods allowing their participation in the determination of employment conditions.