Informe definitivo - Informe núm. 335, Noviembre 2004

Caso núm. 2307 (Chile) - Fecha de presentación de la queja:: 27-OCT-03 - Cerrado

Allegations: Unwillingness of the authorities to bargain with the complainant; threats of dismissal, disciplinary proceedings, deduction of remuneration and other punitive measures against participants in two strikes

1. 536. The complaint is contained in a communication from the Teachers’ Association of Chile dated 27 October 2003. The Government sent its observations in a communication dated 30 April 2004.
2. 537. 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 complainant’s allegations

1. 538. In its communication of 27 October 2003, the Teachers’ Association of Chile (CPCAG), an affiliate of the Single Central Organization of Chilean Workers (CUT), explains that since 1990, with the advent of democratic government in Chile, a process has begun of restoring the rights lost by Chilean workers, and teachers in particular, during the military dictatorship. Over the years, the complainant organization, like other public sector organizations, has participated in negotiations on wages, among other issues. These negotiations took place with the public authority, represented in this case by the Ministry of Education, according to de facto procedures which created a situation of uncertainty for the teachers since the procedures, time limits and other aspects of negotiation had been fixed unilaterally and arbitrarily by the authority.
2. 539. The complainant organization alleges that on 9 April 2003 it submitted to the Minister of Education a list of teachers’ demands relating to professional, pedagogical and wage issues, which launched the 2003 bargaining round and was signed by the National Executive Committee and all the regional presidents. While it is true that the authority agreed to bargain with the organization and a number of bipartite working committees were set up to deal with the items on the list of demands, there had been no formal reply to date on the points on the list of demands, and in particular on the wage increase requested by the teachers’ association.
3. 540. The complainant organization states that it is clear from this attitude that the authority was not genuinely willing to negotiate and conclude an agreement on wages, among other issues; the authority confined itself to publicly discrediting the list of demands without taking the trouble to present a formal and serious counter-proposal indicating specific amounts and distribution formulas of the promised wage increase.
4. 541. The complainant organization states further that this refusal to negotiate, which constitutes an abuse of power by the authority, led to two strikes being held, in accordance with mandates given by the National Assembly. The first took place on 30 September 2003 and, since there was no response by the authority despite the strike, a second strike was held on 23 and 24 October of the same year. These strikes were solely and exclusively motivated by economic and occupational interests, outside of any political or other considerations, and was therefore protected under the institutional framework provided by the International Labour Organization.
5. 542. The complainant organization states that public education is currently administered by the municipalities, which may manage it either directly or through municipal corporations; however, it is still 100 per cent publicly financed, either through central state subsidies or through contributions by the municipalities. The latter share does not, as a rule, cover more than 10 per cent of the system.
6. 543. The complainant organization alleges further that an attempt is being made to infringe the right to strike: both the central authority and the decentralized administrative bodies have threatened the teachers who responded to the call for a strike by their national organization with dismissals, disciplinary proceedings, deductions from remuneration for hours not worked and other punitive measures inappropriate for a democratic State to apply to people whose only offence was to fight for their fair and legitimate demands. The application of any punitive measure such as those described above against the teachers who adhered to the strikes called by their organization constitutes an anti-union practice which should be void by operation of law, in particular given that after Chile’s ratification of ILO Conventions Nos. 87, 98 and 151, these Conventions were promulgated as legislation of the Republic and hence wage and other negotiations between the CPCAG and the authority now take place within an institutional framework derived from the fact that these Conventions are now embodied in the legislation of the Republic and even have constitutional rank according to article 5, paragraph 2, of the Political Constitution.
7. 544. While it is true that the abovementioned Conventions do not contain explicit provisions concerning the exercise of the right to strike, the latter has been recognized repeatedly through the case law of the Committee on Freedom of Association.
8. 545. Accordingly, faced with the Government’s refusal to apply Conventions Nos. 87, 98 and 151, the complainant organization legitimately exercised the right to hold a legal strike, on the grounds of which it has been threatened with severe sanctions which are entirely inappropriate, given that the exercise of a right can in no case be a punishable act, either directly or indirectly, either through disciplinary proceedings or dismissals or through deductions from pay for hours not worked. It is paradoxical, to say the least, that the threats of sanctions, i.e. acts which are contrary to law, emanate from the State itself, whose bodies hold a constitutional mandate to respect and promote compliance with the law, especially those provisions embodying international treaties ratified by Chile and which are in force pursuant to article 5(2) of the Political Constitution mentioned above.
9. 546. Furthermore, it is not a valid excuse to refuse to apply the laws arising out of ILO Conventions on the grounds that no regulations have been enacted governing their application, since this condition is not stipulated in any legal text, and the public authorities cannot, by virtue of the principle of legality benefiting a State based on the rule of law, arrogate to itself powers in addition to those granted to it by the Constitution and the law. In line with this argument, any international treaty ratified by Chile could remain a dead letter forever until a law regulating it is enacted – an assertion which is repugnant and contrary to the moral and juridical conscience of all those who uphold the need for the full application of an international and globalized public order in labour law which essentially promotes respect for and the furtherance of economic, social and cultural rights of persons and their associations.

B. The Government’s reply

1. 547. In its communication of 30 April 2004, the Government states that in Chile, no teacher, in the exercise of his or her occupation, has as an employer counterpart the central Government or the Minister of Education. Employment contracts are concluded – and hence the economic and social benefits contained in them are agreed – between each teacher and his or her private employer or private subsidized employer, or the municipality employing them, without intervention by the central Government.
2. 548. Concerning the teachers employed in the private sector, whether privately financed or subsidized, they are covered by the Labour Code (a general law) governing the procedure of collective bargaining, which they may engage in and which they do engage in vis-à-vis their employers, without restrictions other than the requirement of representativeness.
3. 549. As for teachers employed in the municipal sector, who may be considered as public officials in the broad sense of the term, their conditions of employment and remuneration are freely determined between the parties to the employment relationship (teacher and municipality) in each particular case, within the framework of the “Statute on Education Professionals”, which is a regulation protecting the workers in this sector. Notwithstanding the above, the abovementioned statute does not provide for machinery for negotiation between these officials of the municipal public sector and the Government, or between the latter and the Teachers’ Association of Chile, which is an occupational association for professional representation rather than a trade union representing its members’ interests – a legal situation which is fully in conformity with international standards given that, unlike the case of Convention No. 87, whose scope includes all workers, it is possible under Convention No. 98 to exclude a certain category of workers from the exercise of this right.
4. 550. Article 6 of Convention No. 98 provides that it “does not deal with the position of public servants engaged in the administration of the State ...”; without prejudice to this, the Government of Chile – as the complainant organization points out in its complaint – since the restoration of democracy and even before ratifying Convention No. 98 has engaged in negotiations with that occupational organization for the purpose of proposing to the National Congress the establishment or modification of the national legal and financial frameworks having a bearing on the contracts concluded between municipal employers and the teachers employed by them. The provisions affecting the conditions of employment contained in contracts concluded on a decentralized basis are mainly in the form of national laws drafted and approved, in accordance with the Constitution, with the participation of the National Congress and the Executive Branch.
5. 551. The President of the Republic is vested with exclusive power to propose legislation involving or affecting public expenditure, which is crucial in a system in which most of the resources used by the municipalities to finance education come from subsidies or transfers from the national budget. These proposals have been agreed to and implemented in the past up to the present day, and this constitutes a bargaining procedure which has become established practice, in keeping with the principle of good faith, in accordance with which they have been agreed upon and implemented, as noted by the Committee on Freedom of Association when it recognized this form of bargaining in Case No. 1946 of 1998, in which the complainant organization submitted a complaint concerning the bargaining procedure, recognizing its existence.
6. 552. Accordingly, and despite the constraints of the situation and the absence of an explicit regulatory framework, the Government has negotiated the terms and conditions for the sector and complied with the agreements concluded, and continues to do so up to the present day.
7. 553. Concerning the alleged refusal by the authority to negotiate with the complainant organization, the Government points out that the complaint itself submitted by the Teachers’ Association of Chile, states the following: “… while it is true that the authority “agreed to bargain” with the organization and a number of bipartite working committees were set up to deal with the items on the list of demands …”; thus the complaint itself disproves the complainants’ assertions, and hence the content of the complaint appears to be reduced to the timing of negotiations, specifically the date on which they were to be concluded, since what the complaint maintains is that the complainants’ list of demands was negotiated but did not culminate in an agreement.
8. 554. The Government adds that the time limits and procedures of self-regulated negotiations cannot be fixed unilaterally by one of the parties, as the complainant organization appears to claim, but must be established by agreement between them, as it is essential to a good faith interpretation to take customary practice into account, as well as the context in which the negotiations take place.
9. 555. It is common knowledge in Chile that since 1990 the Government has periodically negotiated the legal and financial frameworks governing terms and conditions of employment of municipal teachers, which are established between the latter and their respective employers, and these negotiations are intrinsically linked to the discussion of the general budget Act and the evaluation by the financial authority of the possibilities of increasing wage benefits of public employees; pursuant to legal provisions derived from constitutional principles, this is done in the last months of each year in our country.
10. 556. The Government points out that the Committee on Freedom of Association, endorsing the point of view expressed by the Committee of Experts, maintained that “while the principle of autonomy of the parties to collective bargaining is valid as regards public servants covered by Convention No. 151, the special characteristics of the public service described above requires some flexibility in its application” (Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, para. 899) and that “collective bargaining in the public sector calls for verification of the available resources” (ibid., para. 898).
11. 557. It follows from the above that the Government did not refuse to negotiate, but did so according to the timing and procedures established by customary practice with the complainant organization, in good faith, and reached an agreement with that organization which, among other points, provides for the following socio-economic benefits for teaching staff:
    • - an increase in teachers’ wages for the years 2004, 2005 and 2006, which includes the general wage adjustment for the public sector equivalent to 3 per cent for 2004; 5.5 per cent for 2005; and 6.5 per cent for 2006, in addition to an increase for the subsidized private sector;
    • - a cash bonus for teachers for 2004 and 2006;
    • - an improvement in labour standards for teaching staff;
    • - an amendment in the regulations on authorization and qualification to engage in the teaching profession;
    • - implementation of the academic work in the municipal sector;
    • - improvement in the regulations on administrative disciplinary proceedings for teachers under municipal administration;
    • - timing of staff meetings in educational establishments;
    • - provisions on occupational diseases;
    • - benefits for municipal sector teachers who take retirement;
    • - special assistance for teachers of establishments in socially vulnerable conditions;
    • - cash bonus for teachers in charge of rural schools;
    • - support for the compulsory creation of teacher training courses;
    • - change in the further training allowance;
    • - variable individual performance allowance, linked to the performance evaluation system for teaching staff;
    • - improvement in the designation of responsibility for management positions and technical pedagogical posts.
12. 558. There has thus been no refusal to negotiate; on the contrary, this bargaining round has been one of the most wide-ranging and beneficial for teachers in recent years, which obviously required more extensive and detailed bargaining at a faster pace than usual and a conclusion appropriate to bargaining on this scale.
13. 559. Another aspect of the complaint relates to the alleged existence of anti-union practices, both by the central authority and by the decentralized administrative bodies, allegedly consisting of “threats to teachers who responded to the call for a strike by their national organization with dismissals, disciplinary proceedings, deductions from remuneration for hours not worked and other punitive measures”. In this respect, the Government points out that no teacher, in the exercise of his or her occupation, has as a counterpart the central Government or the Minister of Education. Employment contracts are concluded between each teacher and their private employer or the municipality which employs them, without intervention by the central Government, and hence the Government against which this complaint is being presented lacks any possibility or power to carry out any of the activities described in the complaint.
14. 560. No complaints have been filed with the competent bodies relating to specific cases or situations reflecting such practices, neither is there any reference to them in the complaint itself, which merely refers in general terms to “threats” without citing specific cases. Without prejudice to the above, pursuant to the doctrine of the Committee on Freedom of Association itself, “salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see 230th Report, Case No. 1171, para. 170, 297th Report, Case No. 1770, para. 75, and Digest, para. 588].
15. 561. As regards the allegation that an attempt is being made to infringe the right to strike despite the Conventions ratified by Chile, the Government states that the legal system in Chile, through its Constitution, guarantees “the right to associate without prior authorization” (article 19, paragraph 15, of the Political Constitution of the Republic of Chile) and also raises to constitutional rank “the right to affiliation to unions in the cases and in the manner prescribed by law” (article 19, paragraph 19, of the Political Constitution). In addition, section 212 of the Labour Code recognizes that “workers in the private sector and state enterprises, irrespective of their legal nature” have the right to form “trade union organizations of their own choosing”. The same right is recognized, although in different terms, for workers engaged in the administration of the State, in section 1 of Act No. 19,296 on public servants’ associations, which recognizes that workers engaged in the administration of the State, including the municipalities, have “the right to form public servants’ associations of their own choosing”. Employers on their side may form organizations “for the purpose of promoting the rationalization, development and protection of the activities they have in common on the basis of their occupation, trade or branch of production or services”, availing themselves of the provisions contained in Legislative Decree No. 2,757 of 1979.
16. 562. The rights enshrined in Conventions Nos. 87 and 98, as well as the right to strike, are likewise guaranteed both de jure and de facto. Although no ILO Convention or Recommendation regulates the right to strike, except Paragraph 7 of the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), which provides that none of its provisions “may be interpreted as limiting, in any way whatsoever, the right to strike”, the Government of Chile is clear about its incorporation in instruments such as the International Covenant on Economic, Social and Cultural Rights (1966) and the International American Charter of Social Guarantees (1948), and hence understands that the right to strike, as pointed out by the Committee on Freedom of Association, is “an intrinsic corollary of the right of association protected by Convention No. 87” and therefore cannot be separated from the body of trade union rights, and hence is considered to be a fundamental right of workers and their organizations in that it constitutes a means of defending their economic interests. The Government refers to the principles of the Committee on Freedom of Association. In the case at issue, the Government points out that it has not carried out any act involving infringement of the exercise of the right to strike, although it is convinced that the strikes were not legitimate, since they were held without the possibility of safeguarding minimum services and to the clear detriment of the most socially vulnerable segments of the population, i.e. those attending municipal education, whose right to education was infringed in a procedure which was entirely unnecessary, given the time and the context in which it was held.

C. The Committee’s conclusions

1. 563. The Committee observes that in this case the complainant organization has alleged violations of teachers’ right to bargain collectively and to strike. Specifically, it alleged that after a list of teachers’ demands was presented to the Minister of Education, the 2003 bargaining round was initiated, and the authority had agreed to negotiate, setting up a number of bipartite committees, and that at the time the complaint was submitted (October 2003) the competent authority had not made a formal reply to the items on the list of demands, an attitude which, in the view of the complainant organization, demonstrates that the authority was not genuinely willing to negotiate and conclude an agreement on wages, among other issues, and has not taken the trouble to submit a formal and serious counter-proposal. The complainant organization adds that this refusal to negotiate led it to call a strike on 30 September 2003, and a second strike on 23 and 24 October of the same year.
2. 564. The Committee notes that the Government points out that despite the lack of an explicit regulatory framework, since 1990 it has negotiated the terms and conditions of teaching personnel and complied with the agreements concluded, but that in the case at issue, in accordance with customary practice and good faith, the timing and procedures cannot be unilaterally established by one of the parties, especially given that the legal and financial frameworks governing the terms and conditions of employment of municipal teachers are linked to the discussion of the general budget Act and evaluations by the financial authority. Lastly, the Committee notes with interest that the Government reached an agreement with the complainant organization which includes, among other points, increases in teachers’ remuneration for the years 2004, 2005 and 2006, which shows that the Government did not refuse to negotiate, but that it did so according to the timing and procedures established through practice with the complainant organization, in good faith.
3. 565. As regards the alleged threats by the central authority and the decentralized administrative bodies (dismissals, disciplinary proceedings, deductions of remuneration for hours not worked and other punitive measures against the workers who responded to the call for a strike by the complainant organization), the Committee notes that the Government: (1) denies that it has committed any act which involves infringing the right to strike; (2) recalls the principles of the Committee to the effect that salary deductions for days of strike give rise to no objection; (3) emphasizes that the complainant organization has not cited any specific act which would have infringed the right to strike, neither have any complaints been filed; and (4) points out that in the case at issue the strikes were held without the possibility of safeguarding minimum services. In these circumstances, given that the collective dispute which gave rise to this case ended with the conclusion of a collective agreement and that the complainant organization has not provided details concerning the alleged threats, the Committee will not proceed with the examination of these allegations.

The Committee's recommendations

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