Report in which the committee requests to be kept informed of development - REPORT_NO360, June 2011

1. 377. The complaint is contained in a communication from the National Association of Civil Servants of Chiledeportes (ANFUCHID) dated 27 May 2010. The complainant provided additional information in a communication dated 14 July 2010.
2. 378. The Government submitted its observations through a communication dated 12 November 2010.
3. 379. 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. Allegations of the complainant organization

1. 380. In its communication dated 27 May 2010, ANFUCHID, the trade union organization representing public servants in the National Sport Institute of Chile, stated that it signed an agreement protocol with the National Sports Institute on 9 May 2008. This instrument was signed by the National Director of the Institute and the Legal Director of the General Secretariat of the Government on behalf of the State of Chile; and by the president of ANFUCHID and the chairperson of the National Association of Public Servants (ANEF), on behalf of the employees.
2. 381. The complainant organization indicates that the main thrust of the signed protocol was related to the civil service career (and the attendant obligation to adhere to the selection process for admission to the administration through an open competition); the establishment of a series of joint panels on the improvement of the institution (annual strategic plan, programme for management improvement, etc.); the completion of certain tasks pending (basically with respect to procedural processes whose deadlines have expired); the improvement of workers’ rights (limits on dismissal, increase in remunerations, etc.); the respect for trade union rights, and, in general, the rights established under the law respecting associations of public sector employees (Act No. 19296). Furthermore, paragraph 22 of the abovementioned protocol expressly stated that the Institute’s failure to comply with this provision would empower ANFUCHID to adopt any necessary measures, taking the provisions established under Convention No. 151 of the International Labour Organization into special consideration.
3. 382. The complainant organization states that on 11 March 2010 the current President of the Republic appointed a new National Director of the Institute, who was assigned to his duties on the very same day. On 11 April 2010, the National Director met with the national board of ANFUCHID and informed its members that he would not observe the protocol since it had been signed by the previous Director and not by him personally. He, therefore, regarded the instrument as not being legally binding upon himself. The Association alleges that since that statement was made, the Institute has failed to fulfil its obligations under the protocol, particularly with respect to the civil service career, and has recruited at least nine persons outside the open competitive process.
4. 383. The complainant organization adds that when summoned before the Sports Commission in the Chamber of Deputies, the Director reiterated that the protocol was an agreement signed between his predecessor and the Association, and was therefore not his obligation. In fact, on 12 May 2010 he said “this is an agreement signed by the previous Director, Mr Jaime Pizarro, and ANFUCHID. It was an undertaking to which I have not subscribed, it therefore does not bind me to the provisions contained therein”. The Association also alleges that on 25 May 2010 the Director announced the dismissal of 20 public employees, all of whom had been hired on contract. This action expressly violates the 11th clause of the protocol, which states that no List 1 official may be dismissed without undergoing an administrative inquiry to prove fault on the part of the employee.
5. 384. In its communication dated 14 July 2010, ANFUCHID sent a copy of the application for the remedy of protection that it had submitted to the Santiago Court of Appeal.

B. The Government’s reply

1. 385. In a communication dated 12 November 2010, the Government recalls that in accordance with section 7 of Convention No. 151, the framework for negotiations between public authorities and public employees’ organizations are confined to “conditions of employment ... or of such other methods as will allow representatives of public employees to participate in the determination of these matters”. Using the “literal and logical element” as a rule of universally accepted legal hermeneutics, it can be inferred that the scope of the expression “conditions of employment” would scarcely include the option that the powers granted under the law to a public body for the proper discharge of its functions should be constrained by an agreement between public employees and public authorities. Indeed, such powers do not grant an agency the authority to unilaterally establish conditions of employment in the service, but they do convey the authority that is inherent in the responsibilities attached to a position of leadership, such as the appointment or dismissal of staff, provided that such action does not violate provisions expressly established by law. Therefore, section 20(b) of the Sports Act (No. 19712) of 2005 outlines the powers of the National Director, including “the appointment and hiring of staff, the termination of their services, and the adoption of disciplinary measures that are compatible with statutory norms governing such measures”.
2. 386. In keeping with the previous paragraph, the Government also states the hypothesis of limiting the inherent powers of the public agency in question, by virtue of an agreement between that body and the public employees, would violate the principle of lawfulness enshrined in the legal order, and specifically, section 6 of the Political Constitution of the Republic of Chile, which states that “Government agencies shall ensure that their action is governed by the Constitution and the norms enacted in conformity therewith, and safeguard the institutional order of the Republic”. In so doing, the legally conferred powers and prerogatives held by those agencies to properly perform their duties would be waived, and their legal validity under existing domestic legislation would be nullified.
3. 387. Similarly, Act No. 18575, the Organic Constitutional Law on the General Principles for State Administration, whose consolidated, coordinated and catalogued text was enacted by decree through the promulgation of Act No. 19653 of 2000, by the General Secretariat of the Presidency, provides, in section 2, that “action taken by bodies of state administration shall be governed by the Constitution and domestic law. Such bodies shall act within their competence, and shall have no further powers than those expressly granted by law. Any abuse or excess in the exercise of their authority shall give rise to the corresponding rights of action and appeal”.
4. 388. From the perspective of domestic legislation, the law respecting associations of public sector employees (Act No. 19296) states that the main aims of the abovementioned bodies are to “promote economic advancement and improve the living and working conditions of its members; provide support for the development of members; compile information on the work of the public body concerned regarding the plans, programmes and decisions that relate to its employees; notify the competent authorities of any breaches of the rules on the Administrative Statute and others that establish the rights and obligations of public sector employees; represent employees in the forums in which they are legally entitled to participate, and, at the request of the interested party, facilitate representation of the members when dispute assessments under the relevant Administrative Statute are submitted to the Office of the Comptroller General of the Republic”.
5. 389. As is evident in that provision, the activities of the associations of public sector employees promote the interests of their members, and monitor compliance with the rules governing staff, inter alia, Convention No. 151. There is nothing to infer the existence of powers to restrict the inherent authority of a public body by virtue of a sublegal instrument.
6. 390. As regards the Government’s compliance with the provisions of Convention No. 151 and Act No. 19296 respecting associations of public sector employees, it should be underscored that the public service in question has fully respected the right of its employees to organize, particularly with respect to the provisions of the abovementioned international instrument. It has also ensured adequate protection against all forms of anti-union discrimination related to their employment, and has respected the total independence of the association of public service employees in its rapport with the government authorities. Representatives of recognized public employees’ organizations have been afforded the appropriate facilities to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work. In fact, the association of public employees in question has been able to make all the presentations it deemed relevant, and has enjoyed full autonomy with respect to the public authorities, based on the rules set out in its own by-laws and applicable domestic standards. It is therefore difficult to grasp in what manner, according to the complaint presented by ANFUCHID, freedom of association has been affected.
7. 391. Regarding the specific legal authority of the National Director to hire staff, the Government referred to section 17 of the Administrative Statute, approved by Act No. 18834, which describes entry to the civil service career. This does not mean that the law rules out other modalities for persons to enter the public service. In order to ensure the proper functioning of duties within the public service, there is need for specific powers and prerogatives, which, by their very nature cannot be applied to all workers falling within the ambit of the regulation governing the “civil service career”. Under administrative law, staff may be recruited through modalities that differ from those applicable to the civil service career, such as the option to hire personnel “on contract”, or in positions of “exclusive trust”. Section 20(b) of the Sports Act supports this distinction, inasmuch as it includes “the appointment and hiring of staff, the termination of their services, and the adoption of disciplinary measures that are compatible with statutory norms governing such measures” among the powers of the National Director.
8. 392. Commenting on the specific powers legally conferred on the National Director with respect to dismissals, and on the decision adopted by the National Board to serve dismissal notifications on 20 employees on 24 May 2010 to the effect that their employment would be terminated as their services to the Institute were no longer required, the Government stated that this situation had emerged within the context of the operational restructuring under way in the National Sports Institute of Chile, and was supported by section 31 of the Organic Constitutional Law on the General Principles for State Administration. The employees who were notified of dismissal had been hired “on contract”, and fell within the scope of Exempt resolution No. 3561 of 24 November 2009, which extends the hiring of employees by incorporating the wording “as long as such services are required”.
9. 393. The Government adds that the Comptroller General of the Republic acknowledged resolution No. 107 issued by the National Sports Institute in 2010, and which contained provisions on the early termination of services performed by public employees on contract that are identified therein, since the resolution was compatible with existing law and jurisprudence in this area. Furthermore, in numerous rulings, case law has consistently indicated that an appointment on contract that uses the wording “until such services are required” creates a juridical link subject to the discretionary power of the public entity in two respects, a treatment that creates two modalities in civil law: a date of expiry (31 December, the date on which all employment “on contract” is terminated), and a resolutory condition (that the services become redundant). These modalities reflect the fundamentally transient nature of duties carried out on contract, a feature that is expressly enshrined in section 3(c), and section 10 of the Administrative Statute, approved by Act No. 18834. This is confirmed by the ruling of the Supreme Court Case No. 25-2004 on remedy for protection (dismissed) of 20 January 2004, which states “that the transient nature of employment on contract has led the Comptroller General of the Republic to rule in similar cases that ‘the functions of staff who are hired on contract must expire automatically on 31 December, unless the contract has been extended, or unless the letter of appointment expressly states an earlier date of expiry’ (Case No. 14120 of 1993); that ‘it is incumbent on the public authority that appoints the public sector employee to independently determine the appropriateness of extending a contract and, if this is not the case, the employee shall cease to perform his or her function by legal mandate’ (14036/93); that ‘a thirty-day period is required only for the purpose of extending the contract, and not for notifying the employee that the contract will not be renewed’. The public authority is entitled to terminate the employment of staff on contract at any time when said contract has been drafted according to the formula ‘as long as such services are required’; the same criterion applies to its extension (1932/92)”. Judicial decision on Case No. 80293, handed down by the highest jurisdictional body in the Republic, states that “Based on the wording of section 9 of the Administrative Statute, approved by Act No. 18834 (current section 10), employment ‘on contract’ shall only run, as a maximum, up to 31 December of each year, and nothing shall prevent this duration from being shorter. Moreover, the Comptroller General of the Republic has issued a rule, contained in the Interpreted Administrative Statute (folios 33 to 34), which interprets section 9 above as follows: during the period in which a public employee is carrying out his or her duties on contract, he or she shall enjoy the rights enshrined in section 37 of the Administrative Statute (73034/61). Consequently, only the reasons established by decree through Act No. 338 of 1960 (32341/65) shall give cause for the expiration of such functions, unless the contract is worded “as long as such services are required”, in which case, employment shall be terminated with effect from the time the person concerned has been notified of the completion of the procedure prescribed by the relevant decree or resolution (31364/66, 85703/63). Since the challenged Exempt Decree No. 345 is in line with current legal standards, and was issued by the corresponding authority that was acting within the scope of its powers and responsibilities, it cannot be considered that the abovementioned administrative statute is illegal or arbitrary. It is therefore unnecessary to enter into an analysis, if its passage resulted in an infringement of the fundamental rights of the appellant”.
10. 394. The Government highlights the distinction that is made in the case of “career civil servants” who, according to section 81 of Act No. 18834 on the Administrative Statute, and due to the nature of their duties, enjoy employment stability, under section 136 of the abovementioned rule, which also provides precise grounds for dismissal. In the performance of functions established by law, and with the authority conferred upon it under the existing juridical framework, the public body has acted legitimately, and has fully complied with the relevant international treaties.
11. 395. The Government states that the complaint does not explain in what manner Convention No. 87 has been violated, and wishes to underscore that it has fully complied with the provisions and principles enshrined in that instrument. It has recognized and promoted freedom of association as a fundamental safeguard that is enshrined in section 19 of the Political Constitution of the Republic of Chile. As regards remedy for protection submitted by ANFUCHID to the Santiago Court of Appeal alleging that dismissal of the public service employees was arbitrary and illegal, the Government adds that the application for protection was declared admissible by a resolution dated 11 July 2010. It adds, however, that this does not in any way imply a pronouncement by the Court on the purpose of the proceedings; the request for remedy was examined simply because it fulfils the formal requirements to be considered by the Court. The Government reports that pursuant to a decision dated 1 October 2010, the Appellate Court later ruled on the merits of the case presented, dismissing the application for protection, with the award of costs to the appellant. Finally, through a judgment dated 29 October 2010, the Supreme Court confirmed the decision under appeal of 1 October 2010 issued by the Santiago Court of Appeal, thereby resolving the matter currently before the Committee, rendering it inappropriate to initiate new appeals.

C. The Committee’s conclusions

1. 396. The Committee notes that in the present case, the complainant organization alleges that in violation of the provision of the agreement protocol that had been concluded with the National Sports Institute on 9 May 2008, the authorities that assumed duty on 11 March 2010 proceeded to dismiss 20 public sector employees “on contract” (according to the complainant, the 11th clause of the agreement protocol states that no employee in List 1 may be dismissed without an administrative inquiry to prove fault on the part of the employee), and to hire nine persons without a competitive process (in this case, the complainant does not mention which clause of the agreement protocol has been violated).
2. 397. In this regard, the Committee takes note of the Government’s statement that: (1) the Sports Act (No. 19712) of 2005 establishes that the powers of the National Director shall include the appointment and hiring of personnel, the termination of their services and adoption of disciplinary measures in line with the relevant statutory norms; (2) the hypothesis that the limitation of the inherent power of the public body in question through an agreement between this body and the employees would violate the principle of lawfulness enshrined in the legal order, and would therefore waive the powers and prerogatives granted by law for the proper performance of its functions; (3) the Organic Constitutional Law of the General Principles of the State Administration No. 18575 provides that the work of the administrative bodies of the State shall be governed by the Constitution and laws, that such bodies shall act within their competence and shall not be endowed with more powers than those expressly granted by law. Any abuse or excess in the exercise of such powers shall give rise to the relevant rights of action and recourse; (4) section 17 of the Administrative Statute, approved by Act No. 18834, explains the process of entry to the civil service career, but this does not mean that the law does not contemplate other modalities for joining the public service. Indeed, the administrative system allows for the engagement of personnel under terms that differ from those governing the civil service career, such as staff engaged “on contract” and those enjoying positions “of exclusive trust”; (5) the decision to dismiss 20 employees because their services were no longer required was presented within the context of ongoing operational restructuring within the Institute, pursuant to section 31 of Act No. 18575 mentioned earlier; (6) the employees in question were hired under the “on contract” regime and Exempt resolution No. 3561 of 24 November of 2009 used the wording “as long as such services are required” for this type of contract; (7) the Comptroller General of the Republic endorsed resolution No. 107 of 2010, adopted by the Institute, that allowed “on contract” services provided by public employees to be terminated early, in line with existing legislation and relevant case-law, which had, in numerous rulings, consistently underscored that an “on contract” appointment that uses the wording “until such services are required” creates a juridical link subject to the discretionary power of the public entity; and (8) ANFUCHID filed an appeal before the Santiago Court of Appeal that was dismissed on 1 October 2010, and upheld by the Supreme Court on 29 October 2010.
3. 398. The Committee takes note of the arguments of the Government to the effect that the clauses of a collective agreement should not restrict the inherent powers of a public body by virtue of legislation, and observes that the response of the Government infers that, otherwise, legal responsibilities would be enforceable with respect to the authorities. Under these conditions, taking into account the Supreme Court decision, which does not give grounds for inferring the existence of anti-union practices, and mindful of the fact that neither the 20 dismissals nor the engagement of nine new employees constituted a violation of the agreement protocol, the Committee will not pursue its examination of these allegations.
4. 399. In addition, with reference to the allegation by the complainant organization to the effect that the new leadership of the National Sports Institute had informed ANFUCHID that it would not honour the agreement protocol, since it was an undertaking signed by the previous Director and therefore not deemed to be legally binding upon on the new regime, the Committee, noting that the Government’s reply refers only to the allegations relating to the violations of the agreement protocol previously examined, underlines the importance of honouring collective bargaining agreements and requests the Government to provide information on the validity of the agreement protocol concluded with ANFUCHID in 2008, and on the willingness of the National Sports Institute to comply with the said instrument.