Definitive Report - Report No 384, March 2018

Case No 3214 (Chile) - Complaint date: 04-MAY-16 - Closed

Allegations: Non-compliance by the authorities with a memorandum of understanding, acts of repression in punishment for collective work stoppages and protests, and failure to use social dialogue mechanisms to handle the dispute

1. 189. The complaint is contained in a communication from the National Association of Public Servants (ANEF) dated 4 May 2016.
2. 190. The Government sent its observations in a communication dated 20 April 2017.
3. 191. 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. The complainant’s allegations

1. 192. In its communication dated 4 May 2016, ANEF indicates that it signed a memorandum of understanding (copy attached) on 5 September 2014 with the authorities of the regional government of Atacama through the region’s Public Sector Board (hereinafter “MSP Atacama”). The complainant organization states that the key provisions of the memorandum of understanding included: (i) the payment of a regular special cost-of-living allowance to the region’s public servants, the final amount of which would be determined following a study by the National Institute of Statistics (INE) in 2015 to establish the real cost of living in the region; (ii) the inclusion of MSP-Atacama representatives in the team tasked with defining the terms of reference of the study and in its monitoring and evaluation; (iii) the payment of a temporary special allowance to the region’s public servants in 2015 pending completion of the study, with the possibility of renewal in the event of a delay in the study; and (iv) the establishment of a number of round tables from 8 to 12 September 2015 to address matters, including the situation of public workers paid on a fee basis in the region, and to discuss various measures with the aim of improving the living conditions of the region’s inhabitants.
2. 193. The complainant alleges that the Government has failed to comply with the abovementioned memorandum of understanding. In that regard, the complainant points out that, as a result of the signing of the memorandum of understanding on 13 February 2015, Act No. 20815 was published with a view to granting a temporary special allowance to the public servants of the Atacama region pending completion of the study on the cost of living in the region. The complainant states that the study was carried out between January and February 2016, outside the agreed time frame, and reports that, contrary to the provisions of the memorandum of understanding, MSP-Atacama representatives were not included in the group responsible for defining the study’s terms of reference. Furthermore, the complainant reports that in December 2015, on account of the delay in carrying out the study, the governor of the Atacama region informed MSP-Atacama that the temporary special allowance would continue to be paid under the same conditions as in 2015. The complainant further reports that the various bipartite round tables envisaged in the memorandum of understanding were never established. Lastly, the complainant alleges that, on 7 April 2016, a bill seeking to ensure that the regular special allowance would only be received by workers earning a maximum wage of 700,000 Chilean pesos was submitted to Parliament without first informing the workers. The complainant indicates that the workers opposed the bill, which was rejected on 19 April 2016 by the Finance Committee of the Chamber of Deputies.
3. 194. The complainant alleges that, in response to the Government’s non-compliance with the memorandum of understanding, on 1 March 2016 the trade union and professional association members of MSP-Atacama called an indefinite strike that lasted for more than 60 days. The complainant reports acts of repression against workers who took part in the indefinite strike. In particular, the complainant reports: (i) the repression by the special forces unit of the Chilean police of a protest staged by workers in the centre of the regional capital city on 9 March 2016; (ii) the brief detention of 22 workers, mostly trade union officials, who took part in a demonstration on 22 March 2016; (iii) the brief detention of the national vice-president of the Single Confederation of Workers (CUT) during a protest in the region; and (iv) the initiation of criminal proceedings against public servants who had taken part in the indefinite strike for allegedly violating the State Security Act (No. 12927). Specifically, section 11 of the Act provides that “collective work stoppages, walkouts or strikes in public services … that are carried out in a manner inconsistent with the law and disturb the peace or disrupt public utilities or services the compulsory operation of which is established by law … shall constitute an offence and be liable to a minimum or medium term of ordinary imprisonment or confinement to a specific place in the territory”. The complainant adds that the dispute created a high level of tension, leading several public authorities to call for the Government and the unions to engage in dialogue.
4. 195. The complainant alleges “blacklisting” and deducting pay from public servants as punishment for their participation in the indefinite strike. The complainant states specifically that, on 11 April 2016, the Office of the Under-Secretary for the Interior instructed the public services of the region to make lists of those public servants who had not worked as a result of the indefinite strike. In this connection, the Office of the Under-Secretary for Transport and Telecommunications communicated through Decision No. 81 of 12 April 2016 that deductions would be applied to the representative of the public servants’ association. The complainant reports that, in the same vein, the Office of the Comptroller-General issued Opinion No. 18297 (copy attached) in which it declared illegal the public servants’ indefinite strike under article 19(16) of the Constitution and section 84(i) of the Administrative Statute. Furthermore, the Office of the Comptroller-General established in its opinion that, as a consequence of the public servants’ participation in the work stoppage, the deduction made from their wages was lawful under section 72 of the Administrative Statute.
5. 196. Lastly, the complainant alleges that the Government did not use social dialogue mechanisms to deal with the abovementioned dispute. In particular, the complainant considers that it did not observe Articles 7 and 8 of Convention No. 151, ratified by Chile, which require the adoption of machinery for negotiation or other methods to allow representatives of public employees to participate in the determination of terms and conditions of employment, as well as mechanisms to settle disputes pertaining to the determination of such terms and conditions that ensure the confidence of the parties involved.

B. The Government’s reply

1. 197. In its communication dated 20 April 2017, the Government reports the signing on 5 September 2014 of a memorandum of understanding between the Atacama region public authorities and MSP-Atacama, of which the ANEF was a member. The Government recalls the content of the memorandum of understanding in its communication and appends a copy thereto. The Government states that, after this complaint was filed, it signed an agreement (copy enclosed) with the public servant members of MSP-Atacama on 11 May 2016. The Government notes that the signing of the abovementioned agreement put an end to the demonstrations and strike staged by the public servants of the Atacama region and settled the dispute clearly and comprehensively.
2. 198. The Government reports that, in accordance with the provisions of the 2014 memorandum of understanding, 13 February 2015 saw the publication of Act No. 20815 granting a temporary special allowance to the public servants of the Atacama region, with the possibility of renewal for 2016 in the event of a delay in completing the study required in order to decide on the granting of the regular special allowance. The Government states that the study was completed by the INE in due time and form and published in December 2015 as the Consolidated National Expenditure Basket (“Canasta Nacional Única de Gasto”) study. The Government adds that round tables were held on 7, 12, 15, 18, 23 and 30 March 2016 to inform the public servants of Atacama of the findings of the study that would serve to validate their right to receive a regular special allowance. The Government notes that the social partners involved were informed in those meetings that there were no technical grounds or divergences in the macroeconomic situation of the Atacama region to justify the continued payment of a special allowance. The Government indicates that, with a view to resolving the dispute that arose as a consequence, the 2016 agreement envisaged: (i) the convening before 21 May 2016 of a round table composed of members of the Government and representatives of MSP-Atacama, to analyse the priorities and time frames for addressing the various items included in the 2014 memorandum of understanding and other documents; (ii) the carrying out of a new study on the cost of living in the Atacama region by the end of the first half of 2017 to once again consider granting a regular allowance to the public servants of the region; (iii) the convening of a joint round table between the Government and the representatives of the region from 15 May 2016 to agree the terms of reference of the study; and (iv) the allocation of a one-off allowance in 2016 and 2017 to the region’s lowest paid public servants.
3. 199. The Government states that the abovementioned events gave rise to protests and an indefinite strike by the public servants of Atacama in the first half of 2016, as well as to the submission of this complaint. The Government indicates that it did not engage in acts of repression or “blacklist” those who took part in the protests and the indefinite strike. The Government adds that the police force only intervened in incidents that violated the rights of citizens or compromised their safety, such as takeovers of public buildings, physical assaults on individuals, and blocking of roads and paths to hinder the free movement of the inhabitants of the Atacama region. Furthermore, the Government reports that the competent authorities authorized requests to carry out marches and protests in the region in line with current legislative requirements, especially with regard to the feasibility of the marches and protests and the safety of the workers themselves. Lastly, the Government indicates that it gave a commitment, under item 2 of the agreement of 11 May 2016, to establish a regional labour forum with worker representatives with a view to analysing and possibly withdrawing the criminal complaints already being investigated in relation to acts linked to the public servants’ demonstrations.
4. 200. Regarding the deductions in the wages of public servants for days or hours not worked, the Government states that this measure does not constitute a sanction against the workers; rather, it ensured the implementation of current regulations. In this connection, the Government refers to section 72 of Ministry of Finance Legislative Decree No. 29 (2004), approving the amended and harmonized text of the Administrative Statute (Act No. 18834). In accordance with this provision, wages will not be paid for hours not actually worked except in specific cases that do not include work stoppages, and time not worked must be deducted from employees’ wages. The Government also refers to various opinions of the Office of the Comptroller-General, including Opinion No. 62446 of 10 November 2009 which provides that “when public employees do not perform their duties owing to their voluntary participation in strikes, walkouts or work stoppages, the value of the periods of time not worked for such reason will be deducted from their wages”.
5. 201. Regarding the dispute settlement mechanisms, the Government states that the authorities were always available to meet with workers and open to dialogue. The Government adds that regulation of the collective bargaining of public servants could help facilitate dispute settlement; however, the adoption of such regulations has not been possible owing to the absence of consensus among the organizations. Overall, the Government states that it complies with the standards established in Convention No. 151 and that the right to strike is exercised by public servants without restriction.
6. 202. With respect to the allegations and in line with the abovementioned observations, the Government considers that there has been no violation of Convention No. 151 by the Government of Chile, notwithstanding the differences in the interpretation of the facts by the parties, since these differences were resolved through dialogue, as shown by the conclusion of the memorandum of understanding of 5 September 2014 and the agreement of 11 May 2016.

C. The Committee’s conclusions

1. 203. The Committee observes that, in the present case, the complainant alleges non-compliance by the authorities with the memorandum of understanding, acts of repression in punishment for collective work stoppages and protests, and failure to use social dialogue mechanisms to handle the dispute.
2. 204. The Committee notes, in particular, that the complainant alleges the violation of the provisions of the memorandum of understanding that had been concluded on 5 September 2014 between the authorities of the Atacama region and the public servant members of MSP Atacama. According to the complainant, the study required in order to decide on the granting of a regular special allowance to the public servants of the Atacama region was concluded between January and February 2016, outside the allotted time frame. The complainant also alleges that, contrary to the provisions of the memorandum of understanding, the representatives of MSP-Atacama were not included in the team tasked with defining the terms of reference of the study and in its monitoring and evaluation. The complainant further alleges that bipartite round tables to discuss the issues listed in the memorandum of understanding were not established. Moreover, the Government submitted a bill regarding the conditions for the allocation of the regular special allowance to Parliament on 7 April 2016 without first informing the workers. The Committee notes that the Government, for its part, declares that the abovementioned study was completed in due time and form in December 2015, and that round tables were convened on 7, 12, 15, 18, 23 and 30 March 2016 to inform the public servants of the Atacama region that, on the basis of the study’s findings, there were no technical grounds or divergences in the macroeconomic situation of the Atacama region to justify the continued payment of a special allowance.
3. 205. While observing that the parties differ on the subject of the failure to comply with the 2014 memorandum of understanding, which gave rise to the dispute at the heart of this complaint, the Committee takes note of the Government’s indication that it signed an agreement with the public servant members of MSP-Atacama on 11 May 2016 to put an end to that dispute. The Government provides a copy of the agreement.
4. 206. With regard to the complainant’s allegations of acts of repression by the police force against workers who took part in protests, the Committee notes the Government’s indication, in its communication, that the police force only intervened in situations where the rights of citizens were violated and their safety compromised. Regarding the alleged initiation of criminal proceedings against the workers who took part in the indefinite strike, the Committee notes the Government’s statement that, under the 2016 agreement, it committed itself to the establishment of a regional labour forum with worker representatives with a view to analysing and possibly withdrawing the criminal complaints already being investigated in relation to acts linked to the public servants’ demonstrations. The Committee observes that, according to the ANEF’s indications and as it transpires from the Office of the Comptroller-General’s opinion, these criminal proceedings had been based on the alleged abandonment of duties by the public servants. In this connection, the Committee recalls that “No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 672] and firmly expects that the abovementioned process of reviewing the criminal complaints will ensure full respect for this principle.
5. 207. In relation to the complainant’s allegations of “blacklisting” and deducting pay from workers who took part in the indefinite strike, the Committee notes that the Government, in its response, declares that it never drew up “blacklists” and that the deduction in salaries was made on the basis of current regulations regarding time not worked by public servants. In this connection, the Committee recalls that “Salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see Digest, op. cit., para. 654].
6. 208. Lastly, regarding the complainant’s allegation about the Government’s failure to use social dialogue mechanisms to deal with the dispute that gave rise to this complaint, the Committee observes that the Government also emphasizes that, as a result of social dialogue, it signed the abovementioned agreement on 11 May 2016 with the public servant members of MSP Atacama.
7. 209. Therefore, in the light of the information provided by the Government in relation to the content of the agreement of 11 May 2016, the Committee understands that the dispute that is the subject of this complaint was ultimately resolved through dialogue between the parties.

The Committee’s recommendation

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