Rapport définitif - Rapport No. 388, Mars 2019

Cas no 3246 (Chili) - Date de la plainte: 02-AOÛT -16 - Clos

Allegations: The draft act establishing the public education system would violate freedom of association by not explicitly regulating the situation of trade unions; it would be a step backwards for workers, who currently have, thanks to an exceptional legal provision, the right to bargain collectively and to strike, rights not included in the national legislation for civil servants

1. 259. The complaints are contained in two communications from the Union Assistants’ National Federation for Municipal Education Corporation Workers in Chile (FENASICOM) and the National Federation of Education Workers (SUTE CHILE), dated 2 August 2016 and 17 September 2016, respectively. SUTE CHILE sent additional information in communications dated 21 February 2017 and 24 January 2018.
2. 260. The Government sent its observations in communications dated 31 July 2017 and 12 December 2017.
3. 261. In view of the nature of the issues raised in the complaints, Cases Nos 3246 (FENASICOM) and 3247 (SUTE CHILE) will be examined together by the Committee on Freedom of Association.
4. 262. 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 organization’s allegations

Case No. 3246

1. 263. In a communication dated 2 August 2016, the Union Assistants’ National Federation for Municipal Education Corporation Workers in Chile (FENASICOM) alleges that the draft Act establishing a public education system and amending various legal texts, which was submitted to the Chamber of Deputies in November 2015, does not include the right to organize of non-teaching personnel in educational establishments, their right to bargain collectively, nor their resulting right to strike. The complainant organization explains that, in accordance with Act No. 19464 of 24 July 1996, education assistant personnel who work in educational establishments under the authority of private, non-profit corporations created by councils to manage municipal education have a right to bargain collectively to establish working conditions and terms of employment and remuneration, thanks to an exceptional legal provision. Such right is not extended to teaching assistant personnel working in educational establishments under the authority of education administration departments, who are subject to the provisions of Act No. 19296 on civil servants’ associations.
2. 264. FENASICOM alleges that the draft act – which aims to create a single system managed by decentralized public bodies by transferring personnel who work for the private corporations mentioned – violates the right to freedom of association, since section 39 prescribes that “starting from the date of education service transfer, a period of two years shall be granted for the trade unions representing the transferred personnel to merge, amend their statutes in accordance with Act No. 19296 and switch to being governed by such provisions for all legal purposes following the submission of the amended statutes to the Labour Inspectorate”. According to the trade union organization, this means that trade unions have two years to dissolve their organizations and become civil servants’ associations or else they will cease to function, in violation of Article 4 of Convention No. 87.

Case No. 3247

1. 265. In a communication dated 17 September 2016, the National Federation of Education Workers (SUTE CHILE) indicates that the draft act establishing the public education system (Official Gazette No. 10368-04) seeks to give the public education system a new institutional structure. The complainant organization explains that the legislative reform will mean that the public education system has three levels: (i) the Directorate of Public Education, a centralized public service under the authority of the Ministry of Education; (ii) local public education services, which will be decentralized public services with a legal personality and their own assets, and (iii) educational establishments (education professionals and assistants). In that regard, it explains that the existing educational establishments report to the municipalities either directly, through the Municipal Education Administration Department (DAEM – a public body), or indirectly, through its municipal corporations (private law corporations), employees of which will, with the entry into force of the law, be transferred to local services. On that basis, education professionals and assistants organize either as civil servants’ associations or as trade unions, depending on whether their contractual ties are with the municipality through the DAEM or with a municipal corporation. According to the draft act, the legal successor to the DAEM or the municipal corporation will be the respective local service.
2. 266. With respect to the transfer of personnel, the complainant organization explains that the transitional provisions of the draft act regulate three different situations: (i) the transfer of municipal personnel; (ii) the transfer of municipal personnel governed by the Teacher’s Statute to posts within local services; and (iii) the transfer of educational establishment personnel. The complainant organization stresses that the third type of transfer will be carried out “with no break in service”, as, owing to a legal fiction, the transfer of education professionals and assistants from the municipality or municipal corporation to local services will not affect the seniority of workers or the legal provisions applicable to them. Thus, education professionals will continue to be governed by Act No. 19070 on the statute of education professionals, as well as the Teacher’s Statute, and education assistants will continue to be governed by Act No. 19464, which establishes that the legal regime for such workers is the Labour Code.
3. 267. The complainant organization indicates that the abovementioned draft act contains no provisions on the freedom of association of education workers with respect to either existing or future trade union relations; it therefore expresses concern about the uncertain future of trade unions following the transfers. In addition, the complainant organization expresses concern about the fact that education professionals and assistants will, following their transfer to local services, report to a public institution, meaning that they will, without exception, only be able to organize in accordance with the provisions of Act No. 19296 on public sector workers, which does not provide for the right to bargain collectively or the right to strike. Accordingly, education sector workers will have only one aspect of freedom of association recognized (the organizational aspect). The complainant organization therefore alleges that the draft act will prohibit such workers from exercising the rights to bargain collectively and to strike.
4. 268. The complainant organization explains that, according to the principle of continuity enshrined in section 4 of the Labour Code, existing trade union organizations will remain operational. However, the application of the principle of the continuity of collective rights will be in conflict with the public nature of the new employing entity – the local services – which means that workers affiliated to trade unions will have to transfer to a civil servants’ association. This raises questions with respect to: (i) the recognition by the employer of the rights acquired through collective bargaining; (ii) the right to bargain collectively formerly enjoyed under the previous legislation by education assistants reporting to municipal corporations; and (iii) the collective bargaining carried out by education professionals reporting to municipal corporations.
5. 269. The complainant organization refers to section 39 of the draft act (section 43 of Act No. 21040), on civil servants’ associations, indicating that all workers transferred to a public service will only be able to form associations in accordance with Act No. 19296 (regulations applicable to public sector workers), that existing trade union organizations will have two years to amend their statutes and become civil servants’ associations, and that those associations will, in turn, have one year to meet the quorum set out in section 13 of Act No. 19296.
6. 270. According to the complainant organization, the abovementioned draft act constitutes a step backwards because: (i) education sector workers, who have historically exercised the right to bargain collectively, will be deprived of a right recognized and guaranteed by the Constitution and various ratified international treaties; (ii) it does not guarantee the continuity of existing trade union organizations after the change in employer; and (iii) such organizations must not only become civil servants’ associations but also meet the quorums regulated by the Civil Servants’ Associations Act, in the knowledge that the transfer to a local service will increase the total number of workers and thus the quorum requirement.
7. 271. In a communication dated 21 February 2017 referring to the “Position of the Ministry of Education regarding the labour situation of education assistants reporting to municipal corporations in the context of the draft act establishing the public education system” (May 2016, Official Gazette No. 10368-04), SUTE CHILE notes that, as a result of the move to the new public institutional structure, workers affiliated to trade unions are obliged to dissolve their trade union organizations and lose the right to bargain collectively. It also alleges that the draft act denies assistants (as well as professionals) the status of civil servants, making them workers with duties of a public nature but no public sector guarantees as civil servants.
8. 272. In a communication dated 24 January 2018, SUTE CHILE reiterated its criticisms of Act No. 21040, as promulgated on 24 November 2017, on the grounds that: (i) it violates the principle of continuity and labour stability (transitional sections 36, 37 and 38); (ii) it violates the right to freedom of association (transitional section 43), as it gives new grounds for dissolving trade union organizations; it does not recognize the rights to bargain collectively and to strike of civil servants’ associations from the education sector, whether they be existing civil servants’ associations or trade unions that will become civil servants’ associations after the transfer of workers to local education services; and (iii) there is no recognition of the rights that education workers’ trade unions have acquired through collective bargaining. SUTE CHILE reiterates that the Act does not respect current regulations for education assistant personnel, which recognize their rights to bargain collectively and to strike. Lastly, the organization alleges that, since the adoption of Act No. 21040, many complaints have been received from education workers in relation to mass dismissals.

B. The Government’s response

1. 273. In its communications dated 31 July 2017 and 12 December 2017, which refer to both cases, the Government provides information about: (i) the Chilean school system and the reasons for improving the municipal system of public education; (ii) the situation of education assistants in the municipal sector, which is the subject of the current complaints; and (iii) the protection of the personnel concerned with respect to trade union rights and collective bargaining. It appends to its response a document from May 2016 entitled “Position of the Ministry of Education regarding the labour situation of education assistants reporting to municipal corporations in the context of the draft act establishing the public education system” (May 2016, Official Gazette No. 10368-04).
2. 274. The Government explains that the country’s school system is a mixed, public–private system of provision composed of four types of establishment that report to different entities: municipal (public) establishments, subsidized private establishments, unsubsidized private establishments and establishments with delegated administration. The municipal establishments to which the present case refers are administered by two types of management structure: Municipal Education Administration Departments or Municipal Education Directorates (DAEMs or DEMs), on the one hand, and municipal corporations on the other. DAEMs and DEMs are bodies that belong directly to the municipality; their functions are restricted to the administration of municipal educational establishments, which includes human and pedagogical resource management and administrative management. Municipal corporations are non-profit, private law entities with their own legal personality. Each has a board of directors presided over by the mayor of the respective commune. The general aim of municipal corporations is to administer the education, health and social development of the commune, carrying out functions in different areas of municipal life (education, health, children’s services, etc.). On the basis of various studies on the topic, the Government considers that the municipal public education sector is not in a position to permanently ensure terms of administration and resource management that would guarantee the quality, improvement and future protection of public education across the entire country. Accordingly, the proposal contained in the draft act – which was adopted on 24 November 2017 (Act No. 21040) – envisages the creation of a national system of public education structured around local public education services. These entities belong to the State Administration and assume the form of decentralized public services specialized in education management, which provide administrative, technical and pedagogical support to the school establishments under them. Lastly, the Government declares that it has held a permanent dialogue with almost all stakeholders and unions in school education, in particular, in relation to the draft act establishing the public education system. The unions consulted include the National Council of Education Assistants, the main representative of that segment of workers in municipalized education, which is composed of various federations and confederations of education assistants’ associations and unions from the whole Chilean municipal sector (including FENASICOM).
3. 275. Regarding the situation of education assistants (prior to the reform), the Government indicates that they work in one or more educational establishments and carry out functions other than teaching, which might be professional, technical, administrative, auxiliary or service tasks. Education assistants across the municipal sector are governed by Act No. 19464 and also by the Labour Code. The legislation distinguishes their right to association on the basis of the employing entity. For education assistants contracted by DAEMs or DEMs – i.e. directly by municipalities – section 60 of Act No. 19464 establishes that they are subject to Act No. 19296 on civil servants’ associations. In the case of municipal corporations, section 14 of the same Act No. 19464 grants education assistants the right to bargain collectively in accordance with the Labour Code, permitting an exception for this group of workers to the prohibition set out in section 304 of the Code. According to the Government, the new public education system provided for by the law does not alter the contractual and labour regime of education assistants who work in educational establishments under the authority of municipal corporations or directly for municipalities. In addition, it does not establish requirements or selection processes for transferring all education assistants from municipalities and corporations to future local public education services. The Government asserts that the main modification proposed by the draft act in relation to that sector of workers is to change the employer responsible for contracting education assistants: such employers will assume a single (public) nature, ending the current dichotomy between municipal corporations and municipalities. The Government emphasizes that a key focus of the draft act is ensuring the employment continuity of all workers associated with the provision of public education, meaning that transferred employees will have no break in their employment and will keep their wages and welfare rights. The Government stresses that the “no break in service” transfer model, established in the draft act, means that workers will lose neither their legal rights nor any rights acquired under agreement with the respective municipality or municipal corporation prior to their transfer, including those acquired by tacit agreement. The Government specifies that, in addition to the Administrative Statute, various statutes or specific provisions are applicable to public sector workers according to the nature of their activity. This is true of education assistants, who have their own regulations and statute.
4. 276. Regarding the protection of the union rights of the personnel concerned, the Government states that, firstly, workers have the right to join unions under article 19(19) of the national Constitution. However, the legislation on the public sector establishes a relevant exception in article 84 of the Administrative Statute, which prohibits civil servants from joining or belonging to trade unions in the field of the State Administration. Notwithstanding the above, the Government considers that the State recognizes and respects the freedom of association of State Administration workers, who have their right to form civil servants’ associations recognized, the only condition being that they abide by the law and the statutes of the associations, in accordance with Act No. 19296 on civil servants’ associations. According to the Government, these associations have, in practice, operated in a similar way to trade unions, meaning that the right to organize of workers has also been respected in the public sector. The Government indicates that freedom of association and the representation of labour interests are exercised differently by public sector workers than by private sector workers, but that that does not mean that the rights do not exist or that there are no mechanisms in place for their enjoyment. Moreover, based on the variant regulations and characteristics of the public employment system, the new Act provides that workers should, pursuant to the reform and the resulting change in labour law, transform their trade unions and form civil servants’ associations. The Act grants a period of two years starting from the date of education service transfer for the trade unions representing the transferred personnel to merge, amend their statutes in accordance with Act No. 19296 on civil servants’ associations and switch to being governed by such provisions for all legal purposes following the submission of the amended statutes to the Labour Inspectorate. In that regard, the Government underscores that the Act grants existing trade unions the opportunity to adapt to public sector regulations. It thus guarantees that educational assistant workers will not, at any point during the transfer process, be unprotected with respect to their right to organize and right to representation before the authorities and their employer. The Government stresses that trade unions that do not make use of their right to adapt will remain as such and will not lose their legal personality or forego their legal existence in so far as national legislation does not permit the dissolution of unions by a decision of the administrative authority. According to the Government, the reform affects not the trade union rights themselves, but rather the way in which they are guaranteed. Once the assistants become State employees, their right to organize starts being governed by Act No. 19296 establishing regulations on State Administration civil servants’ associations. In fact, section 7(a) of the Act explicitly indicates that one of the main purposes of civil servants’ associations will be to promote the advancement of their members’ economic, living and working conditions.
5. 277. Regarding the right to bargain collectively, the Government makes a distinction between the right to bargain, on the one hand, and collective bargaining regulated by the Labour Code, on the other. Public sector workers bargain centrally in some cases and on a sectorial basis in others. It is reasonable that general working conditions – which are established by law – tend to be bargained centrally. The Government emphasizes that, unlike in the private sector, the vast majority of working conditions in the public sector are governed by law, which means that wages or general conditions of employment are negotiated, in a manner of speaking, erga omnes. According to the Government, this point is extremely important for avoiding inequality between workers in matters such as wages. This equality principle could be infringed in the case of fragmented bargaining. Therefore, the statutory regime ensures a certain employment stability that must be maintained, and which is not guaranteed by the private law regime. Further still, the Government recalls that, in 2000, Chile ratified Convention No. 151 and that de facto bargaining is carried out with public sector workers within a well-established framework. Lastly, the Government considers that the process of institutional change at the heart of the Act respects the outcomes of the agreements reached by the personnel concerned and their current employers at the time of the transfer of the education service from municipalities and municipal corporations to the future local public education services.

C. The Committee’s conclusions

1. 278. The Committee observes that the present case refers to the establishment by law of a new national system of public education, which implies structural changes. The reform entails a move from a mixed and municipalized education system – where (public) Municipal Education Administration Departments or Municipal Education Directorates (DAEMs or DEMs) and municipal corporations (non-profit, private law entities with their own legal personality) coexist – to a national system of public education structured around local public education services. These entities belong to the State Administration and function as decentralized public services. The complaint refers, in particular, to education assistants from the municipal sector who will continue to be governed by the Labour Code despite the fact that they will have a public employer.
2. 279. The Committee notes that both the initial complaints and the Government’s response refer to the draft act on the public education system. It should be noted that it was adopted on 24 November 2017 (Act No. 21040) and that SUTE CHILE, in a communication dated 24 January 2018, reiterated its criticisms and claims alleging that the Act violated the right to freedom of association.
3. 280. The Committee notes the complainant organizations’ claims that the draft act – and the subsequent Act – would constitute a violation of freedom of association by not explicitly regulating the situation of trade unions, which would respect neither the continuity of trade union organizations nor the agreements that they had reached with workers’ current employers. According to the complainant organizations, the draft act would be a step backwards for workers, who currently have, thanks to an exceptional legal provision, the right to bargain collectively and to strike, rights not included in the national legislation for public sector workers.
4. 281. The Committee observes that the main aim of the Act in question is to provide a single institutional basis for public education across the entire national territory and that, in particular, it aims to harmonize the contractual relations of education assistants and accord them a statutory regime. Such employers will assume a single (public) nature, ending the current dichotomy between municipal corporations and municipalities, without that affecting the assistants’ labour regime. The Committee also observes that the Government indicates that a key aim of the Act is to ensure the employment continuity of all workers associated with the provision of public education, meaning that transferred employees will have no break in their employment and keep their wages and welfare rights.
5. 282. In relation to rights to organize, the Committee observes that transitional section 43 of Act No. 21040 allows trade unions the possibility to change/adapt their statutes to the new situation so that they can defend their members who are now employed by a public entity (local services). It notes that when the education personnel concerned [professionals and assistants working for (private law) municipal corporations] become State employees, their right to organize will begin to be governed by Act No. 19296, which establishes regulations on State Administration civil servants’ associations. In fact, section 7(a) of the Act explicitly indicates that one of the main purposes of civil servants’ associations will be to promote the advancement of their members’ economic, living and working conditions. In view of the above, and regarding the right to organize, the Committee considers that a legislative provision inviting trade unions in the sphere of private sector education to modify their statutes with the aim of affiliating and being able to defend workers from public entities, is not incompatible with the right of workers to establish the organizations of their own choosing, provided that merely declaring the required change is sufficient, without prior authorization. The Committee expects that the rights to collective representation of such workers should be fully assured.
6. 283. The Committee observes that, under the previous education system, the right to bargain collectively constituted an exceptional provision. The Committee further observes that, according to the Government, that situation was only justifiable while the condition that had given rise to the differential treatment persisted – namely, the differing legal nature of the DAEMs/DEMs and the corporations – and that, once workers were transferred to a public service (the local public education service), differentiating between workers who carried out the same duties would no longer be justified, in recognition of the Constitutional principle of equality before the law.
7. 284. While recognizing that it is not competent to form an opinion on the nature of the country’s education system or the legal regime applicable to education sector personnel who are transferred as part of the institutional reform (given that the assistants are not civil servants but rather public agents with a particular status), the Committee notes that the adopted Act establishes a new – public – structure for education, which is the main subject of the complaints as regards its effect on trade union rights. On the one hand, the complainants regret having lost the possibility to bargain collectively and directly with the employer within the municipalized system. On the other hand, the Government considers that in the public sector, unlike in the private sector, the majority of the working conditions of workers are governed by law, without collective bargaining being excluded, although it recognizes that one of the particularities of the civil service in Chile is that it lacks regulated bargaining.
8. 285. In view of the above, while it notes the need to establish a coherent national system of public education under the auspices of one common entity and its consequences in relation to the transfer of the personnel concerned, the Committee observes that, from now on, the trade union rights of education assistants will be determined in accordance with the system in force for civil servants. In that regard, the Committee wishes to recall that it has, on several occasions, drawn attention to the importance of promoting collective bargaining, as set out in Article 4 of Convention No. 98, in the education sector [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1265]. Observing that Chile has ratified Conventions Nos 98 and 151, the Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations (CEACR).
9. 286. Regarding the allegation that neither the right to bargain collectively nor the subsequent right to strike of civil servant organizations from the education sector are recognized, the Committee notes that the Government has not provided information on the issue of strikes. Recalling that the right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State [see Compilation, op. cit., para. 828], the Committee requests the Government to take measures to ensure that the restrictions on the right to strike are in conformity with this decision.

The Committee’s recommendations

1. 287. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations..
   • (b) The Committee requests the Government to take measures to ensure that the restrictions on the right to strike are in conformity with the decision referred to in the above conclusions.