Report in which the committee requests to be kept informed of development - REPORT_NO329, November 2002

1. 299. The complaint is contained in a communication from the Single Central Organization of Chilean Workers (CUT) dated 23 May 2001.
2. 300. The Government sent its observations in a communication dated 6 May 2002.
3. 301. Chile has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 302. In its communication dated 23 May 2001, the Single Central Organization of Chilean Workers (CUT) states that the Association of Health Workers of the Municipality of Empedrado was established on 14 September 1999. As recorded in the founding document, Ms. Juana Contreras Labarca joined the executive committee and took office as President. The employer was informed of this on 13 September of the same year. In addition, the Maule Regional Labour Directorate notified the mayor of the Municipality of Empedrado on 22 February 2001 that the Association had been validly established, had been granted legal personality and that its president, Ms. Contreras Labarca, was covered by trade union immunity, all of the above in accordance with the provisions of Act No. 19,296.
2. 303. The complainant alleges that the Municipality of Empedrado terminated the employment relationship of Ms. Juana Contreras Labarca as of 1 January 2000 by Decree No. 102 of 30 December 1999. The complainant adds that it petitioned the Maule Regional Office of the Comptroller on 7 January 2000 to instruct the employer to reinstate her immediately in her post and in the duties which she was performing at the time of the unlawful dismissal. This petition was examined and accepted by the Regional Office of the Comptroller, which handed down Decision No. 000589 of 9 March 2000, stating that “the post occupied by Ms. Juana Contreras Labarca cannot be eliminated from the health staff of the Municipality of Empedrado, given her status of trade union official, as stated”.
3. 304. The complainant states further that the Maule Regional Office of the Comptroller, by Decision No. 000869 of 23 March 2000, ordered the immediate execution of the abovementioned decision and that the case had been examined by the Legal Department of the Office of the Comptroller-General of the Republic, which issued Decision No. 34451 of 8 September 2000, confirming the decision of the Maule Regional Office of the Comptroller, ordering immediate execution of its decisions and stating further that this situation was in violation of legal and constitutional provisions. Lastly, the complainant states that an appeal for protection was filed with the Talca Court of Appeals on 2 February 2001 requesting the reinstatement of Ms. Contreras Labarca in accordance with the order of the Office of the Comptroller-General of the Republic.

B. The Government’s reply

1. 305. In its communication dated 6 May 2002, the Government states that on 14 September 1999, the Municipal Council of the Municipality of Empredrado, composed of six democratically elected members belonging to four different political parties, agreed on the establishment of staffing levels of the Municipal Department of Primary Health Care for the year 2000, which included a 44-hour reduction in the last category, i.e. category “D”. The Maule Health Service was notified of this agreement on 15 September 1999 and did not object to the elimination of staff in category “D”. The Government points out that the only member of staff in category “D” was Ms. Juana Contreras Labarca.
2. 306. The Government states that the contract of Ms. Juana Contreras Labarca, a category “D” worker, with the municipality was terminated as of 1 January 2000 by Municipal Decree No. 102 of 30 December 1999, based on the agreement reached in the Municipal Council in September 1999. The Municipal Decree also ordered that she be paid statutory compensation.
3. 307. The Government adds that section 48 of Act No. 19,378, laying down regulations for municipal primary health care, lists the grounds for termination of the employment relationship of staff and provides in clause (i) that employees who are members of primary health-care staff shall only be removed from such staff as a result of a reduction or change in staffing levels in accordance with section 11 of the Act. Section 11 lays down the factors to be taken into consideration by the administrative body to set appropriate staffing levels for carrying out the health activities each year, which must conform to the procedure laid down in section 12 of the Act. According to the administrative case law of the Office of the Comptroller-General of the Republic, in cases where the establishment of staffing levels involves a reduction or modification, it is for the municipality to exercise its own discretion in determining which employees will be affected by such measures and cease to be staff members on the grounds set forth in section 48(i) of Act No. 19,378. Moreover, this is consistent with the definition of staffing levels set forth in section 10 of the Act, under which it is for each administrative body to determine the total weekly hours of work required for its activities.
4. 308. The Government states that on 2 February 2001, Ms. Contreras Labarca filed an appeal for protection with the Talca Court of Appeal claiming violation of the constitutional guarantee of protection of work and requesting that she be reinstated. On 13 July 2001, the Talca Court of Appeals ruled the appeal inadmissible. The worker concerned subsequently filed an appeal with the Supreme Court, which upheld the decision of the Court of Appeals and ruled the appeal inadmissible.
5. 309. According to the Government, as at May 2002, the worker in question has not gone to the Municipality of Empedrado to sign the release terminating her employment relationship, neither has she collected the compensation awarded to her in accordance with the law. Lastly, the Government states that in view of the above, Ms. Juana Contreras Labarca should bring the case before the ordinary courts by proceeding to enforce her rights against the Municipality of Empedrado, as the labour departments are not competent to rule on violations of labour legislation committed by the municipalities against their employees.

C. The Committee’s conclusions

1. 310. The Committee observes that in this case, the complainant alleges that in December 1999 the administration of the Municipality of Empedrado terminated the contract of Ms. Juana Contreras Labarca, president of the Association of Health Workers of the Municipality of Empedrado, who was covered by trade union immunity.
2. 311. The Committee notes that the Government states that: (1) on 14 September 1999, the Municipal Council of the Municipality of Empedrado, in determining the staffing levels of the Municipal Department of Primary Health Care for the year 2000, reduced category “D” by 44 hours; (2) the only employee in category “D” was Ms. Contreras Labarca; (3) the employment contract of Ms. Contreras Labarca with the municipality was terminated by a Municipal Decree of December 1999, based on an agreement reached in the Municipal Council, and payment of statutory compensation was ordered; (4) the worker concerned filed an appeal for protection with the Talca Court of Appeals, which was ruled inadmissible, and subsequently appealed against the decision in the Supreme Court, which upheld the appealed decision; (5) Ms. Contreras Labarca has not gone to the Municipality of Empedrado to collect the compensation awarded to her in accordance with the law; and (6) the worker in question may bring the case before the ordinary courts by proceeding to enforce her rights against the Municipality of Empedrado, given that the labour departments (the administrative authority) are not competent to rule on violations of labour legislation.
3. 312. Firstly, the Committee emphasizes that decisions determining staffing levels for employees which reduce or increase hours of work in certain categories of employees and municipalities do not in themselves constitute a violation of trade union rights. However, the Committee considers that if the decisions adopted in such cases are likely to affect the job stability of trade union leaders, the trade unions concerned should be consulted. The Committee requests the authorities to take measures to this end in future.
4. 313. Secondly, as regards the termination of the contract of trade union leader Ms. Contreras Labarca, the Committee recalls that the Workers’ Representatives Recommendation, 1971 (No. 143), provides that:
5. Workers’ representatives in the undertaking should enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.
6. 6. (1) Where there are not sufficient relevant protective measures applicable to workers in general, specific measures should be taken to ensure effective protection of workers’ representatives.
7. (2) This might include such measures as the following:
8. (a) detailed and precise definition of the reasons justifying termination of employment of workers’ representatives;
9. (b) a requirement of consultation with, an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative becomes final;
10. […]
11. (f) recognition of a priority to be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce.
12. 314. The Committee observes that in this case, Ms. Contreras Labarca was covered by the special protection of job stability under Chilean legislation by virtue of her trade union office and that this was recognized by the Office of the Comptroller-General of the Republic. In these circumstances, and bearing in mind the content of Recommendation No. 143, the Committee requests the Government and the authorities of the Municipality of Empedrado to take measures to reinstate the trade union leader in question, without loss of earnings, in a comparable post if the one she occupied has been eliminated, and to keep it informed of any developments.