Informe definitivo - Informe núm. 367, Marzo 2013

Caso núm. 2885 (Chile) - Fecha de presentación de la queja:: 13-SEP-11 - Cerrado

Allegations: The complainant objects to the dismissal of a trade union officer of the Public Servants’ Association of the commune of La Granja, a primary health-care physician of the commune of La Granja, and alleges acts of harassment by the Minister of Health against officials of the municipal primary health-care system of Chile in the context of the national strike, through intimidation of the President of the Centro Occidente Federation of CONFUSAM in an attempt to delay another strike, and that the same authority ordered deductions from the remuneration of the officials who participated in the national strike

1. 357. The complaint is contained in a communication from the Confederation of Municipal Health Officials (CONFUSAM) dated 13 September 2011. In a communication of 4 October 2011, CONFUSAM sent additional information.
2. 358. The Government sent its observations in a communication of 22 October 2012.
3. 359. 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. 360. In its communication of 13 September 2011, CONFUSAM states that on 12 August 2008 Dr Enzo Alejandro Zamorano Jorquera, a staff physician in the primary health-care system of La Granja commune in the city of Santiago, then serving as an officer of the Public Servants’ Association of La Granja commune, affiliated to the Federation of Public Servants’ Associations (FREMESA), itself an affiliate of CONFUSAM, was carrying out his normal duties in the La Granja clinic. On that occasion he was attending a patient as a matter of priority, and the patient died after medical treatment was provided (the complainant provides a detailed account of the treatment and of the stages in the treatment in which the trade union officer was involved). The complainant states that when Dr Zamorano realized that his patient had died, he immediately went to an assembly of his public servants’ association informing them of the need to request the municipality of La Granja, through its highest authority, to conduct an inquiry into the death of the patient and investigate any persons who might be responsible. All of the above was accordingly reported to the mayor, and an investigation was opened a few days later.
2. 361. The complainant states that it should be added that the authorities of the commune had previously had problems with Dr Zamorano. The union officer had led a five-day strike in the commune some months earlier, demanding better conditions and equipment for primary health care in La Granja commune, and it had been publicly announced that there would be reprisals against him.
3. 362. The investigation was opened by Municipal Decree No. 2576 of 2008, and an official was appointed by the municipality to conduct it. He began immediately to gather evidence with the aim of blaming the patient’s death on Dr Zamorano; accordingly, when the latter was questioned, he objected, stating that he did not know why he was being investigated and that he did not recognize the competence of the investigating body to investigate him, especially since it was he himself, through his public servants’ association, who had prompted the investigation. The investigation was soon converted into administrative proceedings (under Act No. 18883, the Administrative Statute for Municipal Officials) through Municipal Decree No. 4023. In his defence, Dr Zamorano maintained that he was not responsible for the patient’s death, as he had duly carried out the procedures required by the principles of medical practice (lex artis) and that the cause of death lay in inadequate coordination and the lack of medical equipment and hospital resources, as well as the delay in bringing in the patient and the failure of the ambulances to respond to the call made not less than four hours before the patient’s death. Evidence was also requested in support of Dr Zamorano’s innocence, in both testimonial and documentary form.
4. 363. The complainant states that the outcome of the process described above, which was monitored by the legal committee of CONFUSAM, was completely futile since the investigating body, instead of abiding by the principle of objectivity laid down in the Statute under Act No. 18883, proceeded directly to gather only evidence inculpating Dr Zamorano, concluding that the penalty warranted in this case was nothing other than dismissal. Accordingly, an appeal was lodged with the mayor, requesting that, in the light of the full context provided by the facts and the evidence, as well as new evidence that might be submitted, the penalty should at least be reduced. CONFUSAM essentially maintained that responsibility for the patient’s death could not be laid on only one person, given that the irregularities that had occurred were numerous and widespread; this was of course rejected by the authority, which upheld the dismissal of union officer Dr Zamorano.
5. 364. The complainant states that, represented by the trade union’s current president, and in accordance with the same Statute enacted by Act No. 18883, it filed an application for reconsideration with the Office of the Comptroller-General (CGR), maintaining the legal argument to the effect that Dr Zamorano was innocent of the patient’s death, which was in fact due to the extremely poor conditions prevailing in the municipal primary health-care system in Chile. It is not possible in practice to treat illnesses requiring more complex care, so that disruptions such as the one found to have occurred when no ambulances were available, causing a delay in bringing the patient in to the local emergency room, result in the regrettable death of a patient. In fact, in the specific case at issue, Dr Zamorano was the only person who took the initiative to register a formal complaint. The decision of the CGR, which upheld the municipality’s decision to dismiss Dr Zamorano, was issued in report No. 71594 of 24 December 2009, which states in its conclusions that Dr Zamorano “violated the principle of administrative integrity in placing private interest above the general interest when he left the service without medical staff, preferring to carry out his trade union activities”. The complainant considers that the following points should be clarified: (1) the principle of administrative integrity is laid down in the Statute enacted by Act No. 18883 in section 58(g), serious violation of this provision being the only general case justifying application of the penalty of dismissal set out in section 123(2) of the Administrative Statute for Municipal Officials; (2) administrative integrity is defined in Act No. 19653 (Act on administrative integrity), section 54, as follows: “consists of unimpeachable official conduct and honest and loyal performance of the office or duty, placing the public interest above private interest”, which leaves ample scope for the authorities to deem a serious violation of this provision any conduct diverging from the adjectives used in this section: “unimpeachable”, “honest”, “loyal”, “placing ... above”; in fact, according to CONFUSAM, leaving aside the prejudice on the part of the authority, Dr Zamorano’s conduct largely exceeds these standards, as he has devoted over 20 years to the service of the community, displaying remarkable commitment in the performance of his primary health-care duties; and (3) the ruling of the CGR constitutes a precedent that is detrimental to the development of trade union activity, indicating as it does that such activity is motivated by the private interest of the officer and denying its nature as the representation of colleagues in the workplace or occupation.
6. 365. Moreover, CONFUSAM considers it superficial to validate proceedings lasting over two years for the dismissal of Dr Zamorano, given that such proceedings did not meet the time limits set in the Statute itself. It adds that, in order to obtain validation of its arguments by a higher judicial body, it filed an appeal with the Supreme Court of Justice against the decision handed down by the San Miguel Court of Appeal. On 23 June 2010 the Supreme Court ruled that: “The judgment of 28 May last, contained on page 79, is upheld.” According to CONFUSAM, the outcome largely violates the principles of freedom of association.
7. 366. In its communication of 4 October 2011, the complainant states that as a result of the national strike called by the Single Central Organization of Workers (CUT) on 24 and 25 August 2011, the year in which CONFUSAM became an affiliate, municipal primary health-care officials were subjected to harassment and provocation by the Minister of Health. That official, to whom the system is technically subordinate, went to the Pablo Neruda Clinic in Lo Prado commune, in the city of Santiago, with a press team to cover the situation with regard to the work stoppage. The complainant adds that, noting that a state of relative normality had been maintained thanks to proper coordination between the officials and service users, he remained there until he saw a group of workers preparing to march towards the city centre in support of the national strike, as planned in the strike call. He then proceeded to get their attention in front of the cameras, as if he were their direct supervisor or a private employer angrily upbraiding his employees. That provoked a brief but vigorous reaction among the public servants, who publicly questioned him, highlighting inconsistencies in his speech and his poor performance at the head of his ministry, which eventually turned into a demonstration in which he was asked to leave the premises, as his presence was disrupting the community.
8. 367. The complainant adds that, as a result, the Minister himself ordered deductions from the wages of many officials of the municipal primary health-care system. In his view, agreement had been reached between the trade union and the public administration concerned on sectoral improvements that involved a commitment by CONFUSAM to refrain from further stoppages, which is wrong on two accounts: (i) the agreement did refer to sectoral issues and sought an understanding in that regard, but of course did not include a permanent limitation on the collective will with respect to putting forward demands on labour and wage conditions throughout the public sector, since that did not fall within the remit of this administration but came under that of the central executive branch, specifically the Ministry of Finance; and (ii) the agreement was not implemented by the authority concerned, making it necessary to file a complaint with the CGR, which unfortunately assigned it the force of a mere declaration, jeopardizing the credibility of future agreements between the parties, given that it was the authority itself that had failed to abide by its commitments.
9. 368. According to the complainant, the deductions were applied differently to the various municipalities, depending on how close the municipal administration was to the current Government and the Ministry of Health, making it necessary for CONFUSAM and other trade unions in the health sector and the public sector in general to file appeals for protection in an attempt to prevent them. The complainant states that the appeals yielded two results: (a) in the sector covered by CONFUSAM, the deductions were cancelled in most of the country’s municipalities; and (b) in the other sectors the matter was resolved through rulings handed down by the Supreme Court, which in April this year set out its doctrine with regard to deductions in strikes.
10. 369. The doctrine of the Supreme Court, contained in Appeal Rulings in applications for protection of the Supreme Court of Justice, Nos 1890 and 2094, of 2011, is somewhat more complex than the conclusion reached by the Government, and the Ministries of Health and Labour in particular. It criticizes the penalties as inappropriate, not having been preceded by the disciplinary procedures prescribed by law, and also on substantive grounds, as they were wrongly assigned.
11. 370. The complainant adds that the Ministry has recently attempted to hold up a process of nationwide strike action in defence of public health intended to push for the implementation of the Protocol of Agreement signed with that department, by intimidating the President of the Centro Occidente Federation of CONFUSAM and member of the CUT National Council, Dr Esteban Maturana. The Ministry has taken numerous measures against the union officer: telephone threats to hold him publicly responsible for the results of the strike; statements denigrating him in the media to the point of insulting him; and threats made inside the National Congress building in Valparaiso.

B. The Government’s reply

1. 371. In its communication of 22 October 2012, the Government states, in regard to the allegations of dismissal of Dr Enzo Alejandro Zamorano Jorquera, staff primary health-care physician in La Granja and union officer of the Public Servants’ Association of that commune, that it requested the mayor of La Granja municipality to send his observations on the subject, and that the latter reported that he had ordered a summary investigation to determine possible administrative responsibility of officials in connection with the death of a patient. The investigation was subsequently converted into administrative proceedings, which established the responsibility of Dr Enzo Zamorano Jorquera (the Government provides information on the medical treatment ordered by the union officer for the patient). The Government states that the mayor of La Granja reported further that the investigation had found that Dr Zamorano bore administrative responsibility and had concluded that he had provided inadequate medical care, failing to carry out the appropriate technical steps in treating the patient, despite the existence of clear and previously established rules which he should have applied in such situations. It also stated that the investigation had been carried out by an investigating official; that Dr Zamorano had replied to the charges and had been able to give evidence; that all of the applicable remedies had been sought (appeal to the mayor requesting reconsideration and filing of a complaint of illegality with the CGR); and that the dismissal took effect once the CGR had confirmed the measure (indicating that the penalty applied was duly proportionate to the acts under investigation).
2. 372. Despite the above, Dr Zamorano, with the support of CONFUSAM, filed an appeal for protection against the mayor of La Granja with the San Miguel Court of Appeal (Case No. 098-2010). Although the court rejected the suit, the plaintiffs subsequently appealed that decision in the Supreme Court – Case No. 4077/2010 – which unanimously upheld the decision handed down by the Court of Appeal.
3. 373. Lastly, the Government reports that the disciplinary measure of dismissal was prompted by, and based on, his capacity as physician treating a patient in the La Granja clinic, and was in no way related to his capacity as officer of a municipal association. Moreover, the acts were sufficiently serious as to convince not only the investigating official and the CGR, but also the Court of Appeal and the Supreme Court.
4. 374. As regards the new allegations of CONFUSAM referring to alleged harassment and provocation by the Minister of Health and objecting to pay deductions as a result of a work stoppage, the Government states that the Ministry of Health of Chile submitted the following arguments of fact and law concerning the right to strike and collective bargaining:
   • – Act No. 18575 on the general principles of state administration provides in section 25 that “public services are administrative bodies tasked with meeting collective needs, in a regular and continuous manner ...”;
   • – officials of the primary health-care system have the legal status of public servants, and are therefore covered by Act No. 18834 on the Administrative Statute, which provides in paragraph 5 (prohibitions) of section 84(i) that “to organize and belong to trade unions in the state administration; to lead, call or participate in strikes, or suspension or stoppages of work, whether total or partial, in unduly detaining persons or property, and in other acts disrupting the normal functioning of the bodies engaged in the administration of the State”;
   • – Act No. 19937 on the health authority provides in section 4 that “the Ministry of Health shall design, decide and supervise health-care policies. Accordingly, its tasks shall include ... : (1) managing the health sector; ... (10) ensuring effective coordination of the health-care networks at all levels”;
   • – by virtue of the principle of continuity of public service and in view of the conflict between the right to freedom of expression (given that strikes are illegal in the public system) and the provision of health-care services, the role of the responsible Ministry is to guarantee the right to universal, timely and quality access of the public to health services, in order to avoid unnecessary risks causing irreparable damage or death, availing itself to that end of the powers vested in it by law;
   • – without prejudice to the foregoing, CONFUSAM engaged in several working parties with the Ministry of Health, to the extent that, on 7 October 2011, an agreement was signed between the parties referred to above and the Chilean Association of Municipalities.
5. 375. The Government states that, in accordance with the principle enshrined in the last indent of paragraph 16 of article 19 of the Political Constitution of the Republic, which provides that “state and municipal officials shall not have the right to strike. The same applies to persons who work in corporations or enterprises, irrespective of their nature, purpose or function, which provide public utility services or services the stoppage of which would cause serious damage to public health, the national economy, public supplies or national security”, it is clear that the Chilean Constitution does not allow public servants – including those working in public hospitals – to go on strike. What is more, the officials of the primary health-care system have the legal status of public servants, and are therefore covered by Act No. 18834 on the Administrative Statute, article 84(i) of which, in paragraph 5, on prohibitions, provides as follows: “To organize and belong to trade unions in the state administration; to lead, call or participate in strikes, or suspension or stoppages of work, whether total or partial, in unduly detaining persons or property, and in other acts disrupting the normal functioning of the bodies engaged in the administration of the State.”
6. 376. In line with the above, the principle of legality enshrined in articles 6 and 1 of the Political Constitution of the Republic, and the provisions of section 62(8) of Act No. 18575, the Constitutional Organic Act establishing the general principles of the state administration, and section 61(a) of the Administrative Statute lead to the conclusion that failing to perform one’s duties in a constant and regular manner during working hours – without having obtained the necessary leave or having been excused by management – could constitute breach of the duties of efficiency, effectiveness and legality, and even affect the principle of administrative integrity laid down in the legislation.
7. 377. As regards the regulatory framework and the deductions applied in respect of the work stoppages, it should be recalled that the right to remuneration is laid down in section 93 of the Administrative Statute, and is based on the effective performance by the official of the services for which he or she was appointed. In addition, section 72 of the Statute provides as follows: “No remuneration shall be received for periods of time not actually worked, with the exception of holidays or leave with pay provided for in this Statute, preventive suspension referred to in section 136, unforeseen events or force majeure. Periods not actually worked by employees shall be deducted monthly by the pay staff, at the written request of the immediate supervisor, provided that the amount of remuneration deducted per day, per half day or per hour shall be the quotient obtained by dividing the monthly remuneration by 30, 60 and 190, respectively ...”. This makes it clear that the legislation authorizes deductions from remuneration, provided that the prescribed requirements are met.
8. 378. The Government concludes that there has been no anti-union act or violation of ILO Conventions Nos 87, 98 and 151, since the authorities of the Ministry of Health acted in accordance with the law, referring the matter to the jurisdictional bodies provided for by national legislation, which handed down their decisions, which are in conformity with the principles stated by the Committee on Freedom of Association in that regard.

C. The Committee’s conclusions

1. 379. The Committee observes in the present case that the complainant: (1) objects to the dismissal of an officer of the Public Servants’ Association of the commune of La Granja, Dr Enzo Alejandro Zamorano Jorquera, a primary health-care physician of the commune of La Granja; and (2) alleges acts of harassment by the Minister of Health against officials of the municipal primary health-care system of Chile in the context of the national strike called by the CUT for 24 and 25 August 2011, and through intimidation of the President of the Centro Occidente Federation of CONFUSAM in an attempt to delay another strike; and that that authority ordered deductions from the remuneration of the officials who participated in the national strike (according to the complainant, the deductions were applied differently to the various municipalities and the matter was referred to the courts, which, in the sector covered by CONFUSAM, cancelled the deductions in most of the municipalities, while in other sectors the matter was resolved through two rulings of the Supreme Court of Justice).
2. 380. With regard to the allegation concerning the dismissal of an officer of the Public Servants’ Association of the commune of La Granja, Dr Enzo Alejandro Zamorano Jorquera, a primary health-care physician of the commune of La Granja, the Committee notes that the Government states that: (1) the mayor of La Granja municipality ordered a summary investigation in order to determine the possible administrative responsibility of officials in connection with the death of a patient; the investigation was subsequently converted into administrative proceedings, which established the administrative responsibility of Dr Zamorano and found that inadequate care was provided by the doctor; (2) the investigation was carried out by an investigating official, Dr Zamorano replied to the charges and was able to give evidence, and all of the applicable remedies were subsequently sought (appeal to the mayor requesting reconsideration and filing of a complaint of illegality with the CGR; (3) the dismissal took effect once the CGR had confirmed the measure (indicating that the penalty applied was duly proportionate to the acts under investigation); and (4) Dr Zamorano, with the support of CONFUSAM, filed an appeal for protection against the mayor of La Granja with the San Miguel Court of Appeal, which rejected the suit; an appeal was lodged against the decision with the Supreme Court, which unanimously upheld the decision handed down by the Court of Appeal. In the light of all of this information, and observing that the union officer’s dismissal was related to inappropriate professional conduct, the Committee will not pursue its examination of this allegation.
3. 381. As regards the allegations concerning harassment by the Minister of Health against officials of the municipal primary health-care system of Chile in the context of a national strike called by the CUT for 24 and 25 August 2011 and through intimidation against the President of the Centro Occidente Federation of CONFUSAM in an attempt to delay another strike, and that that authority ordered deductions from the remuneration of the officials who participated in the national strike (according to the complainant, the deductions were applied differently to the various municipalities and the matter was referred to the courts, which cancelled the deductions in most of the municipalities), the Committee notes that the Government states that the Ministry of Health reported the following: (1) by virtue of the principle of continuity of public service, and in view of the conflict between the right to freedom of expression (given that strikes are illegal in the public system) and the provision of health-care services, the role of the responsible Ministry is to guarantee the right to universal, timely and quality access of the public to health services, in order to avoid unnecessary risks causing irreparable damage or death, availing itself to that end of the powers vested in it by law; and (2) without prejudice to the foregoing, CONFUSAM engaged in several working parties with the Ministry of Health, to the extent that, on 7 October 2011, an agreement was signed between the parties referred to above with the Chilean Association of Municipalities.
4. 382. The Committee notes further that the Government states that: (1) in accordance with the principle enshrined in the last indent of paragraph 16 of article 19 of the Political Constitution of the Republic, public servants – including those working in public hospitals – are not allowed to strike; (2) the officials of the primary health-care system have the legal status of public servants, and are therefore covered by Act No. 18834 on the Administrative Statute, section 84(i) of which, in paragraph 5, on prohibitions, provides as follows: “to organize and belong to trade unions in the state administration; to lead, call or participate in strikes, or suspension or stoppages of work, whether total or partial, in unduly detaining persons or property, or in other acts disrupting the normal functioning of the bodies engaged in the administration of the State”; (3) the principle of legality enshrined in articles 6 and 1 of the Political Constitution of the Republic, and the provisions of section 62(8) of Act No. 18575, the Constitutional Organic Act establishing the general principles of the state administration, and section 61(a) of the Administrative Statute, lead to the conclusion that failing to perform one’s duties in a constant and regular manner during working hours – without having obtained the necessary leave or having been excused by management – could constitute breach of the duties of efficiency, effectiveness and legality, and even affect the principle of administrative integrity laid down in the legislation; (4) as regards the deductions applied in respect of the work stoppages, it should be recalled that the right to remuneration is laid down in section 93 of the Administrative Statute, and is based on the effective performance by the official of the services for which he was appointed, and the legislation authorizes deductions from remuneration, provided that the prescribed requirements are met; and (5) there has been no anti-union act or violation of ILO Conventions Nos 87, 98 and 151.
5. 383. In this regard, the Committee would like to point out, firstly, concerning the Government’s statement that officials of the primary health-care system are prohibited from organizing and belonging to trade unions in the state administration, that, under the provisions of Article 2 of Convention No. 87, health sector officials should have the right to establish and join organizations of their own choosing for the promotion and defence of workers’ interests, without previous authorization, as this is a fundamental right which should be enjoyed by all workers, without distinction whatsoever, including hospital personnel [see Digest of the decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 246]. While it observes that in practice there are trade union organizations (such as the complainant) of health sector officials, the Committee requests the Government to take the necessary steps to amend the legislation in order to guarantee full respect of the provisions of Article 2 of Convention No. 87.
6. 384. As regards the exercise of the right to strike of public servants (including those in the health sector), the Committee recalls that it has emphasized on many occasions that this right may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State, or in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest, op. cit., para. 576]. However, the Committee also emphasized that “in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented” [see Digest, op. cit., para. 596]. While it observes that the Government states that health sector workers do not enjoy the right to strike – although in practice it would appear that they engage in collective bargaining (the Government refers, for example, to a collective agreement concluded with the complainant) and carry out protest actions – the Committee requests the Government to ensure respect of this principle concerning compensatory mechanisms where the right to strike is prohibited and to take steps to ensure that its legislation is in conformity with the principles referred to above.
7. 385. Lastly, as regards the alleged deductions from the remuneration of officials who participated in a national strike, the Committee – while noting that, according to the complainant, they were cancelled in some municipalities, while in others the matter was resolved through Supreme Court rulings – recalls the principle 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]. In these circumstances, the Committee will not pursue the examination of these allegations.

The Committee’s recommendations

1. 386. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary steps to amend the legislation in order to guarantee that health sector officials expressly enjoy the right to establish and join organizations of their own choosing for the promotion and defence of the workers’ interests, without previous authorization and to ensure that its legislation is in conformity with the principles mentioned in its conclusions.
   • (b) The Committee requests the Government to ensure respect of the principle referred to above concerning compensatory mechanisms where the right to strike is prohibited.