Definitive Report - Report No 333, March 2004

Case No 2245 (Chile) - Complaint date: 25-NOV-02 - Closed

Allegations: Objection by the complainant organization to a judicial declaration by the Supreme Court of Justice determining that clerical workers at land registries may not establish trade unions

1. 320. The complaint is contained in a communication from the Amalgamated Workers’ Union of Chile (CUT) dated 25 November 2002.
2. 321. The Government sent its observations in a communication dated 4 September 2003.
3. 322. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 323. In its communication dated 25 November 2002, the Amalgamated Workers’ Union of Chile (CUT) explains that a group of clerical workers at the land registry office in Santiago de Chile established a trade union, and that on 2 September 2002 the Supreme Court handed down Ruling No. 002398 providing that “clerical officials working at a land registry office may not establish trade unions as the regime governing them, which is established in the Courts Organization Code, is incompatible with the regime that governs unionized workers”. (The complainant organization adds a copy of this judicial declaration by the Supreme Court from which it emerges that the land registrars (employers) informed the Court about the establishment of a trade union and about the request to deduct union dues, and asked for directions in this respect.)
2. 324. The complainant organization indicates that the Supreme Court of Justice is blatantly ignoring written legislation with this ruling. Legislation clearly establishes that workers who provide services in land registry offices shall be subject to all the rights and duties contained in the Labour Code. Of these, the right to freedom of association is one of the fundamental rights. The formulation of article 1 of the Labour Code is perfectly clear in its differentiation of groups of employees and workers. There are no stipulations or contradictions that could give rise to a different interpretation. The reasoning of the Supreme Court whereby “... land registrars belong to the secondary scale of the judicial power ...” and “... a special regime governs the work they perform as public officials authenticating documents ...”, has nothing to do with the right of clerical workers at land registry offices to establish trade unions.

B. The Government’s reply

1. 325. In its communication dated 4 September 2003, the Government states that as soon as the judicial declaration by the Supreme Court was known (issued in the framework of an administrative consultation), it ruled that “clerical officials working at a land registry office may not establish trade unions as the regime governing them (established in the Courts Organization Code) is incompatible with the regime that governs unionized workers”, the Legal Department of the Labour Directorate then prepared a document, dated 1 October 2002, which determined the legal status of staff working at notaries’ offices, registries and record offices with respect to their right to establish trade unions and bargain collectively. The Labour Directorate also repeatedly described the offices of notaries and registrars as enterprises for the purposes of the rights and obligations of their workers. In order to dispel any doubt in this respect, Act No. 19759 of 5 October 2001 added a final clause to article 1 of the Labour Code, which categorically establishes that “workers who provide services at notaries’ offices, registries and record offices shall be governed by the provisions of this Code”.
2. 326. It should be borne in mind that the Santiago land registry did not object, at the time, to the establishment of the trade unions, but when they asked it to deduct the union dues and deposit them in the current bank accounts of the respective organizations it refused to do so. Given this refusal by the employer, on 12 April 2002 the executive committee of the Santiago Land Registry Workers’ Union lodged a complaint with the Provincial Labour Inspectorate of Santiago.
3. 327. The Government states that this complaint was examined by the Labour Services investigator, who went to the premises of the enterprise charged and found that, in effect, the employer had refused to deduct the union dues in March and April 2002 from all the unionized workers. In response to this infringement, an administrative fine was levied on 13 May 2002, corresponding to 14 monthly tax units. In June 2002, the administrative authority fined the employer the same amount again on the same grounds. The Government states that the Ministry of Labour is seeking to reconcile the parties with regard to the deduction of union dues.
4. 328. Lastly, the Government notes that the Trade Union of the Santiago Land Registry, established on 14 March 2002, and Trade Union No. 2 of the Santiago Land Registry, established on 12 May 2002, are active and fully in force.

C. The Committee’s conclusions

1. 329. The Committee observes that in this case the complainant organization objects to a decision by the Supreme Court of Justice, handed down in respect of a dispute over the failure to deduct union dues for a trade union of clerical workers at the land registry office, according to which: “clerical officials working at a land registry office may not establish trade unions as the regime governing them, which is established in the Courts Organization Code, is incompatible with the regime that governs unionized workers”.
2. 330. The Committee observes the Government’s statements that: (1) as soon as the judicial declaration of the Supreme Court was known (issued in the framework of an administrative consultation), the Legal Department of the Labour Directorate prepared a document in which it is established that the Labour Directorate has classified the offices of notaries and registrars as enterprises for the purposes of the rights and obligations of their workers, and that they are governed by the provisions of the Labour Code; (2) the Santiago land registry did not object to the establishment of trade unions, but according to the Government refused to deduct the union dues and as a result was fined on two occasions in accordance with the provisions of articles 261 and 292 of the Labour Code by the administrative authority; the Ministry of Labour is currently seeking to reconcile the parties in this respect; and (3) the Trade Union of the Santiago Land Registry, established in March 2002, and Trade Union No. 2 of the Santiago Land Registry, established in May 2002, are active and fully in force.
3. 331. The Committee observes that in this case clerical workers at land registries were able to set up the trade union organizations of their own choosing, that the Supreme Court of Justice considered in an opinion that “clerical officials working at a land registry office may not establish trade unions”, and that nevertheless the administrative authority considered that this category of workers was entitled to establish trade unions in accordance with article 1, final clause, of the Labour Code. In these conditions, the Committee recalls that, in accordance with the provisions of Convention No. 87, all workers, with the sole possible exception of the armed forces and the police, should be able to establish organizations of their own choosing to promote and defend the interests of their members, and requests the Government to go on ensuring this right to the category of workers who provide services for land registries.
4. 332. Furthermore, the Committee notes the sanctions imposed in accordance with legislation by the administrative authority on the Santiago land registry on two occasions for not having deducted union dues, as stipulated by law, and requests the Government to ensure that the relevant legislation (article 261 of the Labour Code which provides that the employer shall make the corresponding deduction and deposit it in the current or savings account of the respective trade union organization(s)) is complied with in this area.

The Committee's recommendations

1. 333. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With respect to the judicial declaration by the Supreme Court of Justice according to which workers providing services at a land registry office are not entitled to set up trade unions, the Committee recalls that in accordance with the provisions of Convention No. 87 all workers, with the sole possible exception of the armed forces and the police, should be able to establish organizations of their own choosing to promote and defend the interests of their members, and requests the Government to go on ensuring this right to the category of workers in question.
   • (b) The Committee requests the Government to ensure compliance with legislation (article 261 of the Labour Code which provides that the employer shall make the corresponding deduction and deposit it in the current or savings account of the respective trade union organization(s)) relating to the deduction of union dues for members of workers’ organizations in the land registry sector.