Definitive Report - Report No 335, November 2004

Case No 2335 (Chile) - Complaint date: 13-APR-04 - Closed

Allegations: Anti-trade union transfer of trade union officials by the Undersecretariat of Education

1. 666. The complaint is set out in a letter from the National Association of Ministry of Education Staff (ANDIME) of 13 April 2004, supported by the International Confederation of Free Trade Unions (ICFTU), in a letter of 4 May 2004. The Government sent its observations in a letter of 14 July 2004.
2. 667. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 668. In its letter of 13 April 2004, the National Association of Ministry of Education Staff (ANDIME) submitted a complaint supported by the International Confederation of Free Trade Unions (ICFTU) on 4 May 2004, in which it alleges that Law No. 19891/2003 created the National Culture and Arts Council, an autonomous, decentralized and geographically distributed public service with legal personality and its own capital, directly responsible to the President of the Republic. Transitional article 2 of this law indicates that the staff of the Cultural Extension Division in the Ministry of Education will automatically become part of the establishment of the aforementioned National Culture and Arts Council, without any exception whatsoever concerning officials who were staff representatives in that Ministry.
2. 669. ANDIME adds that, on 7 November 2003, the Undersecretariat of Education proceeded to certify the posts in the Ministry of Education that would be transferred to the new National Culture and Arts Council, including staff in its cultural division, Ms. Marcela Flores Baussa and Ms. Magali del Carmen Rubilar Casanova, ANDIME, officials for San Camilo province level and metropolitan region ministerial secretary in violation of article 25 of Law No. 19296 which states that union officials may not be moved from their post from the date of their election until six months after the end of their term of office, and also they may not be transferred between localities or functions without their express consent.
3. 670. ANDIME states that both transfers challenge their independence and autonomy and constitute an act of unlawful interference by the authority, which has a direct impact on the functioning and administration of ANDIME and is in breach of ILO Convention No. 151 ratified by Chile.
4. 671. ANDIME indicates that, prior to the submission of this complaint, it appealed on 23 January 2004 to the Comptroller-General of the Republic (Rol 4,226), but that control body had not issued a decision.

B. The Government’s reply

1. 672. In its letter of 14 July 2004, the Government states that Law No. 19891 was published in the Official Journal (Diario Oficial) on 23 August 2003, creating the National Culture and Arts Council and the National Cultural and Arts Development Fund. It is headed by a president with ministerial rank. The law defines the terms governing the classification of staff in the Council:
   • – Transitional article 2: The Cultural Extension Division in the Ministry of Education, the Department of Culture in the Government Secretariat, the Secretariat of the Committee for Assessment of Private Donations shall form the National Culture and Arts Council, with resources and personnel, irrespective the latter’s legal status.
   • – Transitional article 3: The President of the Republic is empowered within 180 days of the date of publication of the present law, to establish the staffing of the National Culture and Arts Council effective from the aforementioned date by a decree with force of law to be issued by the Ministry of Education, and signed by the Minister of Finance.
   • The staffing established shall not result in additional costs, changes in grades or increase in the number of posts provided in the establishment of the Cultural Extension Division and Secretariat of the Committee for Assessment of Private Donations in the Ministry of Education and the Department of Culture in the Government Secretariat from the date of its entry into force. The posts provided shall be certified by the respective undersecretaries. In addition, up to an additional 20 management or administrative posts may be created.
   • In exercising this authority, the President of the Republic shall issue all the regulations necessary to ensure the proper organization and operation of the established staffing.
   • The staff to which paragraph 2 refers shall be deemed to be assigned by the sole force of the law, without interruption of service and, from the date of entry into force, the staff assigned to posts in the new establishment shall have the same grade as they held previously.
   • The assignment shall not for any legal purpose constitute termination of service or abolition of jobs or posts nor, in general, cessation of functions or termination of the employment contract. Neither can it entail loss of the benefits set out in article 132 of Legislative Decree No. 338 of 1960 in relation to article 14 of Law No. 18834.
   • Likewise, staff shall conserve the biennial increments acquired and shall retain the length of service in grade for that purpose.
   • For the sole purpose of the application in practice of the assignment set out in the foregoing paragraphs, the President of the Council, by a resolution, shall notify the specific assignment of each staff member within the establishment.
2. 673. The Government adds that, under the provisions of Law No. 19891, the Undersecretariat of Education proceeded, through exempt resolution No. 10593 of 25 August 2003, to certify the posts provided in the establishment of the Ministry of Education. Subsequently, exempt resolution No. 13139 of 4 November 2003 was issued, which annulled the previous one, and certified the posts held by staff employed in the Ministry of Education Culture Division, where Ms. Marcela Flores Baussa and Ms. Magali del Carmen Rubilar Casanova appear in the professional category, with tenure, scale grade 11.
3. 674. Subsequently, on 23 January 2004, ANDIME, made representations to the Comptroller-General of the Republic, in which it denounced the Undersecretariat of Education for alleged failure to comply with the legal requirements in the transfer of staff members Ms. Marcela Flores Baussa and Ms. Magali del Carmen Rubilar Casanova from the Ministry of Education to the National Culture and Arts Council. On 20 April 2004, the Comptroller-General of the Republic replied to ANDIME’s representations in Judgement No. 19466. In that judgement, the control body held that the Undersecretariat of Education had acted in accordance with the law, since the administrative measure adopted “… was based on a mandate from the legislator, in respect of those who were in the situation contemplated in the law, to exercise functions in one of the departments transferred by sole force of law to the new organization that was created”. With respect to the action of the Undersecretary for Education, the Comptroller-General indicates that “… it is imperative for the implementation of the prescription of the legislator since, otherwise, not only would it mean disobeying an express legal mandate, but it would also alter the procedure ordered for the transfer, and would additionally constitute a serious infringement by the authority as well as a lack of probity and consequent administrative liability”. As regards trade union immunity, a central element in ANDIME’S representation, the Comptroller-General of the Republic indicates that “… this does not apply when it is the law that orders a given measure, as is precisely the case here, in that Law No. 19891 is what orders the disputed transfer”.
4. 675. The Government underlines that without prejudice to the judgement of the Comptroller-General, in the sense that the Undersecretariat of Education had acted in accordance with the law, the Ministry decided to accept ANDIME’s request to include in the Ministry of Education’s establishment the two staff members who were the subject of the complaint to the ILO. In that respect, an administrative arrangement was agreed with the Staff Association of the Ministry of Education (ANDIME) to resolve the situation. This, clearly, is an expression of the Ministry’s desire to strengthen the relationship and quality of dialogue with the staff representatives. In the light of the above, the case has been settled directly between the government education authorities and the staff association, ANDIME.

C. The Committee’s conclusions

1. 676. The Committee observes that, in the present complaint, the complainant organization ANDIME contests the measure taken by the Undersecretariat of Education to transfer two staff members in the Cultural Extension Division of the Ministry of Education, Ms. Marcela Flores Baussa and Ms. Magali del Carmen Rubilar Casanova, to the National Culture and Arts Council, in violation of national legislation and ILO Convention No. 151, ratified by Chile.
2. 677. The Committee notes that the Government states with respect to the transfers that: (1) the Undersecretariat of Education had acted in accordance with the law in the framework of an administrative reorganization established in Law No. 19466; (2) the Comptroller-General of the Republic indicated to ANDIME that trade union immunity (protection of trade union officials against transfer or other prejudicial acts) did not apply since it was the law that ordered the transfer contested in the complaint; (3) nevertheless, to strengthen the relationship and quality of dialogue, the ministerial authority had decided to accept ANDIME’s request and reinstate the trade union officials, Ms. Marcela Flores Baussa and Ms. Magali del Carmen Rubilar Casanova, in the establishment of the Ministry of Education by means of an administrative arrangement agreed with ANDIME, such that the case has been settled directly between the authorities and ANDIME.
3. 678. The Committee notes with satisfaction that the matter which gave rise to the present complaint has been settled directly between the authorities and the complainant organization.

The Committee's recommendations

1. 679. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.