Report in which the committee requests to be kept informed of development - REPORT_NO332, November 2003

1. 400. The complaint is contained in a communication of the National Confederation of Health Care Workers (CONFENATS) dated 30 July 2002. The organization sent additional information in a communication of December 2002.
2. 401. The Government replied in a communication dated 9 April 2003.
3. 402. 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. 403. In its communications of 30 July and December 2002, the National Confederation of Health Care Workers (CONFENATS) alleges that its legitimate and autonomous representation was disregarded through the conclusion of agreements between government authorities and persons claiming to represent the health workers’ union; its current president and national executive have been disregarded, which constitutes interference in the organization’s internal affairs, and foments discord and deceit among its members. This occurred on two occasions. First, an attempt was made to impose on CONFENATS a 26-point agreement on public health system reform, falsely claiming involvement of the organization by having it signed by only two members of the national executive (comprised of 15 members), neither of whom hold the office of president or have received a mandate for the purpose – this despite the express reservation put forward by the official delegation concerning the signing of that document during the negotiation of the agreement. To make matters worse, an official ceremony was held in the Government Palace, which was attended by the Vice-President of the Republic and several ministers and broadcast over the radio and television, and to which the persons who had supplanted the legitimate and lawful representatives of the Confederation were expressly invited.
2. 404. A similarly despicable procedure occurred a few weeks later, this time in the form of a document containing a proposal by government representatives to close the negotiations on remuneration and other terms and conditions of employment, which, as agreed by the CONFENATS national assembly, should have been submitted to consultation through a national and universal referendum to be held in July 2002, in order to approve or reject it. Notwithstanding the fact that the government negotiators were fully aware of the organization’s decision to submit the proposal to democratic consultation of the membership, they did not hesitate to contrive to have a very small minority of the officers sign the agreement, substituting themselves illegally for the will of the majority of the members of the national executive. It should be pointed out in this respect that the Minister of Health expressed to these officers the “commitment to working together for a strong and representative organization” – a clear and obvious sign of intervention in CONFENATS’ internal affairs. In the referendum subsequently held by CONFENATS in July 2002, 18,075 workers rejected the Government’s proposal and 843 approved it – representing 60 per cent of CONFENATS members.
3. 405. CONFENATS further alleges direct intervention by government authorities in the internal organization of the Confederation: disregarding its representative trade union organs and organizational structure, several representatives of the Government, exceeding their authority, organized meetings and assemblies of CONFENATS affiliates in different public health establishments across the country, pressuring members to attend the meetings, at which they put forward their views on the negotiations and issues being discussed with the trade union’s national executive. These constitute repeated and continuous acts of flagrant interference in the Confederation’s internal activities. In so doing, they bypass the trade union’s executive organs elected by the members and bring direct pressure to bear on members to accept their views, which openly contradict the opinions expressed by the national executive.
4. 406. In addition, CONFENATS points out that, during discussions on the changes in remuneration and terms of employment which will accompany the public health system reform, and the salary adjustments described above, there have regrettably been repeated instances of police intervention and use of force. The police have used violence against trade union members and officers, who were detained, beaten (including an assault on trade union officer, Mr. Mauricio Loo Vidal), and prevented from meeting and demonstrating at their workplaces and in public areas; these acts included the trial of and imposition of a penalty against the national president of the organization in a local police court on 10 May 2002 for allegedly creating a public disturbance. It should be pointed out that the excessive use of force by the police was backed by the government authorities, despite the seriousness of the injuries inflicted on members.

B. The Government’s reply

1. 407. In its communication dated 9 April 2002, the Government refers to the allegation that legitimate representation by the CONFENATS executive was disregarded through the signing of agreements between Ministry of Health authorities and persons who were not entitled to represent the workers. The Government states that, as part of the challenge of health care reform – one of the main tasks facing the Government – the Ministry of Health considered it a priority task to reach agreement with the different health unions on issues relating to their professional and occupational demands, especially wage increases and demands. Since the first year of President Lagos’ administration, with Ms. Michelle Bachelet as Minister of Health, talks, consultations and negotiations were held with the different unions in the public health sector. Dialogue committees had been set up, and had been functioning for over two years, with regular meetings to hear views prior to embarking on the health system reform known as the AUGE plan.
2. 408. The Government points out that, with regard to the health sector reform and its implications and impact, in the first half of 2002 the health sector unions decided to engage in dialogue and negotiate with the Ministry of Health, which led to the establishment of the National Council of Health Unions (CONGRES). This has been, and still is, the main interlocutor of the Government, through the Ministry, and all the agreements adopted together have been complied with. Thus, on 13 May 2002, the Ministry of Health and CONGRES signed an “Agreement for better health and health care for all the inhabitants of Chile”. This document was ratified on 19 May 2002 at a ceremony held at the Palacio de la Moneda (the Government Palace), and although some of the officers of CONFENATS did not sign it, others did, in agreement with CONGRES.
3. 409. The Government adds that, through the Ministry of Health, it has continued to negotiate specific issues essentially relating to remuneration, public service career development and terms of employment (in a manner that is fairly consistent with the recommendations of ILO Convention No. 151), with the different trade unions in the national health-care system. Accordingly, in parallel with negotiations with CONGRES, channels of communication and dialogue have been maintained with the Confederation of Municipal Health Workers (CONFUSAM), with which agreement was reached on 14 March 2002, and with CONFENATS, an organization grouping together the regional federations of public health employees who mainly work in the hospital system. The latter expressed its willingness to initiate a bargaining process, as it had already done with the Government, through a negotiating committee comprised of the CONFENATS officers.
4. 410. The Government points out that on 12 July 2002 an agreement was signed between the Ministry of Health and CONFENATS, represented by officers, Mr. Claudio Capees and Mr. Roberto Zambrano, two of the eight members of the abovementioned negotiating committee. The agreement was also signed by the executive committees (represented by their presidents) of seven of the 13 regional federations which made up CONFENATS at that time. The main points of agreement are as follows:
   • – by 31 July at the latest, the Ministry of Health was to submit a Bill to Parliament containing provisions for:
   • n the introduction of a performance allowance equivalent to an 11 per cent adjustment in the base remuneration;
   • n payment of an advance in the last quarter of 2002, and of a bonus to all health service employees;
   • n improvement of the system of merit-based promotion of permanent officials by developing an accreditation system taking into account continuous training variables, performance evaluation and qualified experience. The Ministry’s proposal to introduce a system of promotion through internal competition for management and professionals is to be maintained;
   • n implementation of an incentive system to encourage retirement of staff qualifying for retirement;
   • – normalize staffing levels through administrative measures, according to vacant permanent posts;
   • – increase investment in staff training; participation of the most representative health workers’ organization in training committees;
   • – maintain the current system of staffing based on posts rather than hours.
5. 411. The Government goes on to state that it is clear that all of the above are aimed at improving the terms of employment of public health workers through salary increases, greater participation and a substantial increase in staff training. The agreement is the result of the work of a negotiating committee comprised of all of the health unions and the different services of the Ministry of Health. When the time came to sign the agreement and publicize it, the top leadership of the CONFENATS refused to sign it, disregarding and spurning the work that had been accomplished, which meant going back to square one. Nevertheless, the agreement was ratified by seven of the 13 regional federations, representing 80 per cent of the CONFENATS membership. This agreement, which by any standard represents a step forward in the conditions of employment of health workers, was disregarded by the CONFENATS executive committee. Its refusal to sign it is the result of internal problems in the union, manifested in failed elections, officers virtually being removed from office and the establishment of a parallel trade union organ. The problems relating to elections and challenging of officers occurred in 1999 and 2000. The Government emphasizes that the degree of representativity of the officers who signed the agreement with the Ministry of Health is not a matter for the Government to settle, but that it is the trade union organization itself which must determine its representative bodies. The agreement briefly outlined in the preceding paragraphs is an expression of the trade union officers’ willingness to reach agreements that would benefit both parties and protect the workers’ rights.
6. 412. The Government reached a similar agreement with the National Federation of University Professionals in the Health Services (FENPRUSS) on 26 July 2002. In addition to the many meetings and forums for dialogue set up with the health sector unions, at the same time the Government has complied with previous agreements principally relating to payment of various bonuses and improvements in terms of employment.
7. 413. The Government states that, through the bodies responsible for supervision of compliance with labour legislation, as well as the press, it was aware that most of the trade union officers of CONFENATS had resigned from leadership of the Confederation, having decided to set up a new confederation temporarily to follow up on the agreements set forth in a Bill now before Parliament.
8. 414. “FENATS Unitaria” is a legally constituted trade union organization that cannot be disregarded by the Government, in so far as it meets all the conditions required to function according to the law. FENATS Unitaria was founded on 21 October 2002, with a membership of approximately 15,000 workers in Regions III, V, VII, VIII, IX and X and the metropolitan area. Its provisional executive committee was comprised of 12 officers. Subsequently, according to the records filed with the Labour Directorate, the first congress of the national confederation FENATS Unitaria was held in the city of Temuco on 16 January 2003, at which a definitive executive committee comprised of 15 officers was elected. FENATS Unitaria was established under the protection of ILO Convention No. 87 and in the exercise of the fundamental right of freedom of association.
9. 415. Regarding the accusation that the Ministry of Health has interfered in the internal affairs of CONFENATS, the Government states that this is not true, since it is clear from press statements by ministry authorities that the latter have on numerous occasions expressed their willingness to continue supporting the trade union movement in all its manifestations, without any interference whatsoever. The Ministry’s web site contains the following statement: “We are now forging a major alliance with the workers in order to improve the quality of work in hospitals to provide better care to users.” The Ministry concludes by stating its commitment to working together for a strong and representative health workers’ organization. In this respect, it should be pointed out that the spirit of these statements by the outgoing Minister of Health, Mr. Osvaldo Artaza, is in full conformity with Article 6 of Convention No. 151, which provides as follows: “Such facilities shall be afforded to the representatives of recognised public employees’ organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work.”
10. 416. As regards the alleged direct intervention by the health authorities in the organization and functioning of CONFENATS by organizing meetings and assemblies of its members in the various public health establishments in the country, without taking the national executive into consideration, the Government states that the campaign to publicize the Government’s activities, through the Ministry of Health, jointly with the trade unions, reflects the Ministry’s intention to disseminate as clearly as possible the scope of the agreements reached in order to ensure that all the public health employees in Chile have a better knowledge and understanding of them. The Ministry convenes all the employees of a given establishment to these dissemination events, irrespective of the union to which they belong, and it is therefore utterly untrue and incorrect that the health authorities have interfered in the functioning of CONFENATS. It should be made clear that at no time did any authority whatsoever of the Ministry of Health or other government department attempt to influence the decisions, functioning, establishment or administration of any trade union organization. Respect for one of the principles governing the functioning of the Government in labour matters, i.e. permanent and constructive dialogue with all of the trade unions, cannot be considered as undue interference.
11. 417. As regards the use of police violence against members and officers of CONFENATS who were allegedly detained, beaten and prevented from demonstrating at their workplaces and public areas (including the detention of and imposition of a penalty by a court against the president of FENATS, Mr. Jorge Araya Guerra, and the secretary of FENPRUSS, Mr. Mauricio Loo Vidal), the Government states that the actions of the police forces are dictated by the normal procedures in the event of disturbances in public areas which disrupt civic order – acts which are covered by Chilean legislation. Within this legal framework, which applies to each and every one of the country’s inhabitants, the competent bodies of the judiciary branch, which is independent of the Government, decided to impose a penalty on Mr. Jorge Araya, without the Government of Chile having interfered in any way in his being sentenced to a fine. This penalty was suspended by the court for one year. The alleged assault on Mr. Mauricio Loo Vidal occurred during a protest by a minority group of health workers outside the National Congress, while members of Parliament were discussing issues relating to the health reform.
12. 418. The accusation of anti-union practices levelled by CONFENATS against the Government of Chile reflects the current political and trade union situation in the country, in terms of opposition to processes of dialogue and negotiation from which both parties stand to benefit. Lastly, with a view to further improving the national health system, together with the workers employed in it, the Government declares that both it and the different authorities of the Ministry of Health reiterate their willingness to continue dialogue with each and every one of the health unions, in an effort to achieve a health system which is egalitarian, fair and comprehensive for all of Chile’s inhabitants.

C. The Committee’s conclusions

1. 419. As regards the allegation concerning the conclusion of agreements on public health sector reform between government authorities and only two members of the National Confederation of Health Care Workers (CONFENATS) national executive committee (comprised of 15 members) who did not hold a mandate to do so, and the acceptance by these two persons of a government proposal to close negotiations on adjustments to remuneration and other terms of employment despite the fact that such acceptance should have been submitted to a national (trade union) referendum, the Committee notes that the Government states that: (1) the agreement referred to by the complainant (CONFENATS) was signed and ratified by some of the officers of the Confederation (two of the eight participating in the negotiating committee); (2) on 12 July another agreement (on salary adjustment and other issues) was signed with two officers of CONFENATS, which was also ratified by the executive committees (represented by their presidents) of seven of the 13 regional federations affiliated to CONFENATS (80 per cent of the CONFENATS membership); (3) the refusal by the CONFENATS executive to sign the agreement is the result of internal problems within the Confederation, and the degree of representativity of the officers who signed the agreement with the Ministry of Health is not a matter for the Government to settle; (4) most of the officers of CONFENATS left the Confederation and established a new confederation (FENATS Unitaria); and (5) the authorities engaged in similar negotiations with other trade union organizations in the sector.
2. 420. In the Committee’s view, the conclusion by the authorities of agreements with a reduced number of representatives (two) despite the massive rejection of the Government’s proposal by the workers, and without a mandate from the trade union organs could, in certain circumstances, constitute an anti-union practice. In this case, however, the negotiation of agreements with representatives who do not hold a mandate from the trade union organs of CONFENATS occurred in the context of a major conflict within a trade union which in fact led to the establishment of a new trade union confederation. In this respect, the Committee notes that, according to the Government, the presidents of seven of the 13 regional federations affiliated to CONFENATS (80 per cent of the membership) signed the (second) agreement concluded on 12 July 2002. The Committee observes that the complainant has not cited government pressure on the two trade union representatives in question to sign the agreements to which the complainant objects. In these circumstances, the Committee concludes that the actual facts appear to have occurred in the context of an internal conflict within the complainant organization, on which the Committee is not in a position to decide.
3. 421. As regards the alleged interference by the authorities in the internal organization of CONFENATS, by organizing meetings and assemblies of CONFENATS affiliates to bring pressure to bear on members and put forward the authorities’ views in the negotiating process, the Committee notes that the Government states that: (1) the campaign to publicize the Government’s activities, through the Ministry of Health, jointly with the trade unions, reflects the Ministry’s intention to disseminate as clearly as possible the scope of the agreements reached; (2) there was no attempt to influence the decisions or functioning of any trade union organization, but only to conduct permanent and constructive dialogue with all of the trade union organizations; and (3) the Ministry convened all of the employees of a given establishment irrespective of the trade union organization to which they belonged, and hence it is untrue and incorrect that the authorities interfered in the functioning of CONFENATS. In these circumstances, given that, according to the Government, these were information meetings to which all the workers of the establishments were convened, the Committee will not pursue its examination of these allegations further.
4. 422. As regards the allegation of the use of police violence against trade union officers and members (detentions, beatings, assault on trade union officer, Mr. Mauricio Loo Vidal, preventing the exercise of the right of assembly and demonstration on 10 May 2002; judicial proceedings and imposition of a penalty against the President of CONFENATS, Mr. Jorge Araya, for alleged creating a public disturbance), the Committee notes that the Government points out that the actions of the police forces are dictated by the normal procedures in the event of disturbances in public areas which disrupt civic order, and hence the Government did not interfere in the penalty imposed by the judicial authority on trade union officers, Mr. Jorge Araya (a fine suspended for one year) and Mr. Mauricio Loo Vidal. The Committee observes that the Government does not specify what constituted the disturbances disrupting civic order and reminds the Government of the principle that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 137].
5. 423. The Committee requests the Government to forward to it the decisions handed down against trade union officers, Mr. Jorge Araya and Mr. Mauricio Loo Vidal (indicating, if they are not stated in the decisions, the specific acts of which these persons are accused) and further information concerning the alleged assault against trade union officer, Mr. Mauricio Loo Vidal, and the public disturbance leading to police intervention in the demonstrations by CONFENATS officers and members on 10 May 2002.