Allegations: Union members were pressured to give up their union membership; six
union members were not paid compensation for job losses as a result of the concession of the
El Espigón port terminal in San Antonio to a new enterprise; the complainant trade union was
excluded from the negotiation process concerning the workers’ claims, in which only the
federations of portworkers took part
- 143. The complaint is contained in a communication from the Union of
Specialized Maritime Port Employees (SEMPE) of October 2012.
- 144. The Government sent its observations in a communication dated 23
January 2014.
- 145. 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 Workers’ Representatives Convention, 1971 (No.
135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).
A. The complainant’s allegations
A. The complainant’s allegations- 146. In a communication of October 2012, SEMPE, which represents workers
of the El Espigón port terminal in San Antonio, explains at length the various stages in
the modernization of the port sector since Act No. 19542 of 1997. It alleges that that
process resulted in the loss of thousands of jobs; decisions which seriously prejudiced
and discriminated against the El Espigón port terminal compared with other terminals;
acts or omissions on the part of the authorities to the benefit of other trade unions;
and practices of the federation to which SEMPE was affiliated (but broke away from) and
other trade union federations, to the detriment of SEMPE, which ultimately splintered
and a breakaway union was created, in the context of conflicts of interests and disputes
among trade union organizations.
- 147. More specifically, the complaint concerns the process of determining
the conditions governing the second bidding process and how the public port enterprise
will handle the workers’ proposals and establish the conditions for future port work,
which under a 2008 Order of the Minister of Labour and Social Welfare must be conducted
“together with the workers”. Therefore, in June 2009, the complainant requested the
Board of Directors of the San Antonio Port Enterprise (EPSA) to include it in the
initial phase of the negotiation process, and the enterprise informed the complainant
that it would be included in the bargaining panel alongside the other trade unions which
were represented by their respective federations. The negotiations broke down and a
40-day strike was called. On 10 January 2011, the federations signed an agreement with
the trade union federations operating in the El Espigón port terminal to secure
compensation for the portworkers who would be affected by the imminent bidding process,
subject to conditions of age, accredited years of service in port work, inclusion on the
list approved by the Maritime Authority in the period from 2007 to 2010, and place of
work, it being understood that a distinction would be made between the workers from the
San Antonio International Terminal (STI) and workers from the El Espigón port terminal.
Furthermore, two unions would be protected – including the San Antonio Union of Customs
Clerks (aforistas), whose members are contracted by customs agencies for cargo handling
for containers, that is, to support the customs work itself – who are not portworkers
pursuant to Labour Directorate Order No. 4413/172. SEMPSAI, the splinter union from
SEMPE also benefited.
- 148. SEMPE adds that, after 16 months had elapsed since its June 2009
request to the EPSA operations manager, and owing to the union’s repeated attempts to
have its officials participate in the negotiation panel, in late December 2010 it called
an extraordinary assembly to inform its members of the union’s situation and EPSA’s
indifference towards its requests. Finally, SEMPE decided that its members would each
manage their own application for benefits resulting from the bidding process for the
state terminal. However, in January 2011, the EPSA operations manager informed SEMPE, on
behalf of EPSA’s officials, that only workers belonging to the Alliance of Port Workers’
Federations (FTP) could apply for the benefits obtained by the federations.
Consequently, SEMPE members were excluded from the payment of compensation due to the
fact that SEMPE did not belong to that alliance.
- 149. SEMPE also alleges that the EPSA operations manager incited various
SEMPE members to resign from the union as a prerequisite to receiving application forms
for compensation. Those concerned finally gave up their membership as they were in need
of the benefits. In addition, other members silently left the union (for example, one
former SEMPE member submitted a voluntary statement and resignation letter, which was
received by EPSA). However, the members who resigned from the union expecting to receive
compensation were not considered by EPSA.
- 150. On 11 March 2011, the SEMPE secretary, Eduardo Rojas Muñoz, met the
EPSA operations manager and explained the situation of the trade union organization. At
the end of the meeting, the operations manager made offers which were not specific. On
the contrary, they did not include guarantees that SEMPE members would be able to
receive the compensation payments that were guaranteed to other trade union
organizations, thereby demonstrating favouritism towards the other unions mentioned
above. Since the representative of the enterprise did not offer any guarantees, on 14
March 2011, SEMPE replied to him by email, insisting that the union and EPSA reach a
formal agreement ensuring that SEMPE members would receive the benefits.
- 151. In June 2011, the enterprise informed SEMPE that the EPSA Board had
decided to extend the protocol agreement to include all portworkers, whether unionized
or not, under the same conditions that applied to workers who were members of the
signatory federations. In so doing, the EPSA general manager, together with the
operations manager, made a verbal commitment that they would be considered as exceptions
in the process.
- 152. SEMPE adds that the application forms were submitted to the state
enterprise within the prescribed time limits, on the understanding that, according to
EPSA’s verbal commitments, SEMPE members would benefit from the extension of the
agreement; in particular, clause 7 provided that workers to whom the agreement applied
on an exceptional basis would “have the status of selected workers and receive the
benefit set out in clause 6, on the condition that they provided evidence to EPSA that
they fulfilled the requirements of clause 5(e) and (f) above”.
- 153. The complainant emphasizes that, in the application of the general
terms of the agreement to its members, only three members were able to provide evidence
of fulfilling all of the general requirements set out in the protocol agreements, as a
result of their having taken work in other port enterprises to support themselves, and
that the specific circumstances of the majority of SEMPE members that made them eligible
to be considered as exceptions alongside SEMPSAI and the Union of Customs Clerks were
not taken into account.
- 154. This arbitrary decision, which excluded SEMPE members from the
process, was challenged in a document dated 7 October 2011 that was submitted to the
President of the Board of the state enterprise, Patricio Arrau Pons; however, the Board
never provided a response.
- 155. Finally, in November 2011, EPSA proceeded to pay out the
compensation, excluding SEMPE’s members once and for all since, according to EPSA, they
did not meet the requirements, which were imposed arbitrarily.
- 156. In view of such blatant arbitrary discrimination, SEMPE appealed to
various parliamentary and ministerial authorities.
- 157. The Ministry of Transport and Telecommunications responded on 21
December 2011, stating that in accordance with section 31 of Act No. 19542, it is for
the port enterprises’ directors to manage the processes for the concession of the docks
and hence the resulting compensatory measures, for which they were granted absolute
autonomy under the law. It was “not for the Ministry of Transport and Telecommunications
to participate” in determining such measures.
- 158. The Ministry of Transport and Telecommunications subsequently
confirmed that EPSA was autonomous in the bidding processes (given that the matter in
question was the compensation process), thereby avoiding responsibility to exercise its
powers of monitoring and supervising the actions of EPSA, an enterprise which is under
the responsibility of the Ministry of Transport and Telecommunications.
- 159. In response, union leader Eduardo Rojas Muñoz began a hunger strike
on 3 January 2012 in protest against the anti-union practices and breaches of labour
rights by EPSA and the State of Chile, and seeking payment of compensation for the years
he had worked at the State port terminal of San Antonio. The hunger strike lasted 74
days and had a serious impact on his health, seriously endangering his life. Throughout
the strike, the government authorities took various steps with a view to resolving the
dispute; however, the argument that EPSA was an autonomous enterprise always
prevailed.
- 160. The Ministry of Labour stated that by law it is the Office of the
Comptroller-General which is responsible for interpreting the Labour Code, ensuring that
it is applied correctly and exercising supervisory control over public or state
enterprises, and accordingly is the competent authority to rule on the illegalities at
the root of the dispute.
- 161. Decision No. 16812 of the Office of the Comptroller-General was
issued on 23 March 2012 and addressed only the terms of the protocol agreement and the
application forms received by EPSA, making no reference to the state enterprise’s
failure to negotiate with the union, the arbitrary application of the terms of the
agreement to SEMPE’s members or EPSA’s anti-union practices. In other words, the Office
of the Comptroller-General considered only EPSA’s arguments and made no finding on the
arguments presented by the trade union.
- 162. In light of the foregoing, SEMPE requests that the violations of its
members’ labour and union rights and the discrimination they suffered be remedied and
that its members be awarded compensation forthwith.
B. The Government’s reply
B. The Government’s reply- 163. In its communication dated 23 January 2014, the Government refers to
the complaint of SEMPE and states that it has sought the opinion of EPSA and, on the
basis of its response, makes the following observations: the SEMPE trade union relies on
Act No. 19542 of 1997 governing the modernization of the state port sector. It explains
how the actions of EPSA resulted in the dock that it was operating (El Espigón) becoming
less competitive than the Molo South Terminal (STI). Moreover, it refers to the facts
which, in its view, led to SEMPE’s split from the Federation of Temporary Contractors
and Allied Workers in Maritime Ports (FETRAMPEC), which did receive compensation from
EPSA. It then describes the compensation process put in place by EPSA and refers to the
judicial and administrative proceedings which were initiated when the union was not
awarded compensatory measures and the disputes with other unions.
Comments from EPSA on SEMPE’s allegations
- 164. EPSA states that in the exercise of its legal functions, its Board
launched a public bidding process for the concession of the Costanera Espigón dock of
the San Antonio port. The concession was awarded to Puerto Lirquén SA and transferred to
the operator that was established for the purpose, called Puerto Central SA, on 7
November 2011.
- 165. The enterprise notes that the concession for the dock was awarded
under the port operation system known as the “single-operator system”, which replaced
the “multi-operator system”. This situation led to a change in demand for port work and
the wharf enterprises located in El Espigón ceased to operate as a result.
- 166. EPSA states that, even though no portworkers have a subordinate or
dependent relationship with EPSA, but instead work for the enterprises responsible for
moving and transferring cargo, the EPSA Board considered it appropriate to establish a
compensation scheme to ensure that the bidding process could be completed without any
social or labour-related impediments.
- 167. Accordingly, and after conducting the corresponding consultations,
the Office of the Comptroller-General issued Decision No. 34218 of 24 June 2010, ruling
that as part of the terms of the bidding process, EPSA had the authority to establish a
sum to fund a compensation scheme for the portworkers whose source of work would be
affected by the change from the multi-operator to the single-operator system.
- 168. In the light of the above, under the heading “Provision of funds”,
section 3.11.2 of the relevant terms of the bidding process placed an obligation on the
successful bidder to earmark funds amounting to a maximum of US$18,500,000 to cover such
compensation schemes.
- 169. Under these circumstances, and after an arduous negotiation process
that included a prolonged standstill, on 10 and 22 January 2011, EPSA signed two
protocol agreements with the six workers’ federations in the sector providing for the
establishment of a compensation scheme for those portworkers who fulfilled certain
requirements pertaining to age, years of service in the port sector and place of work,
to be borne by the successful bidder.
- 170. Furthermore, the enterprise’s Board considered it appropriate to
extend the benefits provided for in the protocols to include non-unionized workers who
both met the age requirement and performed work comparable to that of the workers
covered by the agreements.
- 171. In order to be eligible for the compensation scheme, portworkers
(whether unionized or not) had to fulfil the following cumulative
requirements:
- (a) have been portworkers in the years 2007, 2008, 2009 and
until September 2010, as demonstrated by the corresponding red card for each of
those years;
- (b) have been included on the payroll or classified as
“designated” workers approved by the harbour master’s office of the San Antonio port
in the years 2007, 2008, 2009 and until September 2010 or, alternatively, provide
evidence of their income from the port precinct by means of a valid contract and
social security contributions for such periods;
- (c) have worked 36 or more
shifts in each of the years 2007, 2008 and 2009, and 27 or more shifts until
September 2010, in port enterprises operating during those periods in the San
Antonio port;
- (d) have possessed a valid portworker’s card issued by the
maritime authority of Chile (DIRECTEMAR) since 31 December 2010 and until the time
of applying for and receiving the benefit;
- (e) not have received previous
compensation from the State as a former worker of the former port enterprise of
Chile or as a result of previous port terminal concession processes or the
restructuring or modernization of the state port sector.
- 172. The following forms of proof were established:
- (a) years of
service in the system: statements of contributions from the Social Security
Institute (IPS) or the Pension Fund Administration (AFP);
- (b) minimum number
of shifts: workers “designated” by the Maritime Authority;
- (c) proof of
employment as a portworker: red card, valid until 2010 and accredited for each of
the years 2007, 2008, 2009 and 2010;
- (d) employment in a port enterprise:
certified by the Maritime Authority.
- 173. Both the relevant protocols and the beneficiaries of the
compensation scheme were published clearly and transparently on the EPSA website, and
the workers who were on the relevant lists were invited to contact the enterprise’s
offices to resolve any doubts.
- 174. A total of 1,207 applications from workers seeking to be included in
the compensation scheme were received. The data underwent an exhaustive checking and
auditing process, which produced a final list of 1,020 workers; only 187 applications,
or 15.4 per cent of the total, were rejected.
- 175. Finally, by letter No. 255 dated 25 October 2011 EPSA sent the
successful bidder, Puerto Central SA, the relevant instructions to pay the selected
workers compensation totalling 7,744,500,000 pesos. The subsequent payment process ran
smoothly.
- 176. In the case of SEMPE, considering that it did not belong to any of
the six signatory federations, some months after the protocol agreements had been
signed, its union officials met EPSA executives to request negotiations in parallel to
the ongoing negotiations, under conditions differing from those agreed. Considering the
request to be out of time and invalid, EPSA informed the union that that would not be
possible, but that the Board of the enterprise had decided to extend the benefits of the
agreements to other portworkers who fulfilled the same requirements, as stated above. It
was then invited to submit applications for its members. Having accepted the invitation,
in a letter to EPSA dated 17 August 2011, the President of SEMPE provided a list of nine
of its members. The outcome of the subsequent examination of their applications is set
out in the following table.
| Shifts |
| Name | | Outcome of application | 2007 | 2008 | 2009 | 2010 |
| Funzalida Hernández, Luis Andrés | | Does not meet required No. of shifts | 151 | 15 | 44 | 0 |
| González Gaete, Juan Carlos | | Meets requirements. Received 6,000,000
pesos | 405 | 301 | 234 | 262 |
| González Gaete,
Roberto Carlos | | Does not meet required No.
of shifts. Is not a portworker | 0 | 0 | 0 | 0 |
| Lois Barrera, Manuel Eduardo | | Does not
meet required No. of shifts | 295 | 101 | 22 | 87 |
| Lucero Pinats, Nelson Patricio | | Does not meet required No. of shifts | 99 | 13 | 0 | 0 |
| Quinteros Escorza, Juan Carlos | | Meets requirements. Received 5,000,000
pesos | 325 | 300 | 87 | 91 |
| Rojas Muñoz, Alejandro
Mario | | Does not meet required No. of
shifts | 81 | 18 | 1 | 25 |
| Rojas Muñoz, Eduardo
Antonio | | Does not meet required No. of
shifts | 124 | 23 | 0 | 16 |
| Saenz-Diez Soto, Juan
José | | Meets requirements. Received
5,000,000 pesos | 209 | 178 | 122 | 49 |
>
- 177. As can be seen, three of the nine workers met the requirements and
received compensation payments. Since the remaining workers had not worked the minimum
number of shifts, their applications were rejected and they were informed by a letter to
their home addresses. Despite the fact that the enterprise provided objective reasons
why three applications were granted and the remaining six were rejected, the President
of SEMPE, Alejandro Rojas Muñoz, began a hunger strike that lasted more than two months.
However, his state of health remained unchanged, as certified by the Director of the San
Antonio hospital.
- 178. Moreover, he submitted a complaint on the matter to the Office of
the Comptroller-General, which rejected the complaint by Decision No. 016812 of 23 March
2012, finding that:
- … there are no objections to be made as to
the lawfulness of the objective and generally applicable criteria considered by the
San Antonio Port Enterprise in order to define the form, timing and beneficiaries of
the resources that the successful bidder provided in accordance with the terms of
the bidding process to fund the payments in question and, consequently, to deny
payment to persons failing to meet the criteria.
- 179. In its complaint to the Committee on Freedom of Association, SEMPE
alleges that EPSA refused to meet SEMPE officials, took steps designed to weaken the
union by requiring workers to give up their membership in order to receive compensation,
and refused to negotiate the terms under which compensation would be awarded.
- 180. In this regard, EPSA notes that neither SEMPE nor its members have
any contractual relationship with EPSA. Furthermore, it bears repeating that EPSA began
the negotiation process voluntarily, despite being under no obligation to do so. That
being said, representatives of EPSA met SEMPE officials on many occasions and responded
to their claims. Under no circumstances were workers required to give up their union
membership in order to obtain a compensation payout, as was claimed. On the contrary, in
order to demonstrate respect for freedom of association, the EPSA Board extended the
benefits of the protocol agreements signed with the six federations of portworkers in
San Antonio to include all workers, whether unionized or not, who fulfilled the
requirements. Consequently, since there was no requirement for workers to be unionized
or to be a member of a particular organization, SEMPE’s claim that its members were
required to give up their union membership in order to submit an application is
unfounded. The enterprise considers such an assertion to be very serious and wholly
untrue and unjustified.
- 181. Moreover, the enterprise fails to understand why SEMPE considers
that it should have been treated differently from the other first-level unions in the
sector that an exclusive, parallel negotiation process should have been undertaken. The
negotiation process included all of the workers’ federations in the sector, thereby
covering the vast majority of trade unions since, contrary to SEMPE’s claims, it was not
practical or possible to negotiate with each of the first-level unions in the
sector.
- 182. As to the complaints of anti-union practices and the call to pay
compensation, the enterprise notes, firstly, that there were no possible anti-union
practices, as EPSA has no contractual relationship of any kind with SEMPE, and SEMPE
members were not treated arbitrarily, since the agreements were applied objectively to
the applications submitted by the nine SEMPE members.
- 183. The enterprise emphasizes that the administrative proceedings were
concluded when it sent the successful bidder, Puerto Central SA, a communication setting
out the relevant instructions for the payment of the compensation. The payment process
ran smoothly. It is therefore not possible to conduct a new payment process, since EPSA
has neither the resources nor the contractual basis to make such a request of Puerto
Central SA.
Observations of the Government of Chile
- 184. The Government considers that the comments submitted by EPSA speak
for themselves, and only require certain clarifications, which further undermine SEMPE’s
position.
- 185. The trade union claims to have appealed to both the ordinary courts
(labour tribunals, the Court of Appeal and the Supreme Court) and the Office of the
Comptroller-General, none of which found in its favour, which is why it submitted the
present complaint.
- 186. As a result, it is rather difficult to argue that the State of Chile
has failed to comply with ILO Conventions, considering that only six persons of a total
of nine did not receive compensation payments made voluntarily by a state
enterprise.
- 187. In conclusion, in the light of all of these additional
clarifications and considering the information provided by EPSA, the Government rejects
and considers unfounded SEMPE’s claims of violations of freedom of association.
C. The Committee’s conclusions
C. The Committee’s conclusions- 188. The Committee observes that in this case, which concerns facts
dating from 2011, the complainant alleges that EPSA excluded it from the collective
bargaining process relating to the compensation for portworkers that was decided
following the bidding process for the El Espigón terminal port in San Antonio, and that
only three of its members were eligible for the said benefits, in particular the
compensation payments. The complainant also makes allegations of anti-union practices
consisting of pressure on members to leave the union as a condition for receiving the
document and data required to apply for compensation.
- 189. Furthermore, the Committee notes that, according to the complainant,
the authorities failed to fulfil their oversight function and the enterprise refused to
recognize verbal commitments from the management that clause 7 of the collective
agreement signed with the six federations with respect to the workers covered by the
said collective agreement would apply to the union’s members on an exceptional basis;
however, other workers who did not meet the minimum requirements for the payouts and who
were members of two different unions were granted compensation. The Committee observes
that, according to the complaint and the information provided by the Government, the
administrative decisions and court rulings on the complainant’s appeals did not find in
the union’s favour.
- 190. Regarding the alleged anti-union practices and the complainant’s
alleged exclusion from the collective bargaining process concerning training and
compensation as a result of the concession for the El Espigón port in San Antonio being
awarded to a single enterprise, during which the criteria were set for determining the
benefits of the legal compensation resulting from different enterprises ceasing to
operate in the port, the Committee notes the information from EPSA provided by the
Government, according to which: (1) the criteria for compensation were set out in an
agreement with six federations in the sector and require certain conditions (for
example, recipients must not have previously received compensation arising from
restructuring processes); (2) as a result of conversations with the complainant, the
benefits of the compensation were extended to include all workers meeting the
requirements, regardless of whether or not they were members of the signatory trade
unions – a situation which precluded any discrimination against or pressure to leave a
union, and in no case did the enterprise require anyone to give up their union
membership; (3) the enterprise met with officials of the complainant trade union on many
occasions and its claims were responded to through negotiations with all of the
federations in the sector, as it was neither possible nor practical to negotiate with
each union separately; (4) compensation was paid to three members of the complainant
organization who fulfilled the requirements agreed with the federations, but not to the
six other workers who did not meet the requirements.
- 191. The Committee considers that it cannot criticize the fact that the
authorities and the enterprise negotiated the compensatory measures with the federations
of portworkers, excluding the complainant trade union, as the problems raised concerned
the entire port sector; nor can it find fault with the enterprise for not including the
complainant in the bargaining panel. Moreover, the Committee notes a discrepancy between
the versions of the complainant and the enterprise concerning alleged anti-union
practices (pressure to give up union membership as a prerequisite for receiving the
application form for compensation and refusal to meet with union officials), but
observes that both the complainant and the Government agree that the enterprise
ultimately extended the possibility to receive the negotiated compensation to all
portworkers, whether unionized or not, meaning that the potential beneficiaries also
included those members of the complainant trade union who fulfilled the negotiated
requirements.
- 192. The Committee notes that, according to the complainant union, only
three of its members received compensation, and that the enterprise states that the
remaining six members did not fulfil the negotiated requirements concerning the number
of shifts and did not receive compensation for that reason. The Committee notes that the
complainant argues that the enterprise made verbal commitments that those workers would
be considered under clause 7 of the agreement reached with the federations concerning
the workers to whom the agreement would apply on an exceptional basis, and that the
enterprise awarded compensation to workers of two trade unions who did not fulfil the
requirements. The Committee observes that the parties differ in their interpretation of
whether the agreement reached, and in particular clause 7, applies to the members of the
complainant union and whether the members fulfil the requirements set out in the
collective agreement to be eligible for compensation. The Committee recalls that “the
solution to a legal conflict as a result of a difference in interpretation of a legal
text should be left to the competent courts” [see Digest of decisions and principles of
the Freedom of Association Committee, fifth (revised) edition, 2006, para. 532]. The
Committee observes in this regard that the legal action and this appeals made by the
complainant with a view to obtaining payment of compensation for all of its members did
not succeed and that those decisions confirm the legality of the criteria negotiated
with the trade union federations.
- 193. In these circumstances, the Committee considers that this case does
not call for further examination.
The Committee’s recommendation
The Committee’s recommendation- 194. In the light of its foregoing conclusions, the Committee invites the
Governing Body to decide that this case does not call for further examination.
