Interim Report - REPORT_NO365, November 2012

1. 357. The complaints are contained in communications from the National Association of University Professionals of the Labour Directorate (APU), the National Association of Public Servants (ANEF), as well as in communications from the National Federation of Public Servant Associations of the Ministry of the Interior and related services (FENAMINSA) and the National Association of Public Servants of the Office of the Minister and Secretary-General of Government (ANFUSEGG) dated 20 June and 22 August 2011 respectively. FENAMINSA sent additional information in a communication dated 28 September 2011.
2. 358. The Government sent its observations in a communication dated 21 October 2011.
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 complainants’ allegations

1. 360. In its communication dated 20 June 2011, APU states that it is an association of public servants who are university professionals. The APU adds that it is affiliated with ANEF and the Amalgamated Workers’ Union of Chile (CUT) and that it is lodging a formal complaint against the Government of Chile for its violation of the standards and principles set out in Convention No. 151 of the International Labour Organization (ILO), which protect and promote the right of public servants to organize and to freedom of association, on the grounds detailed below.
2. 361. The complainant explains that the incumbent President of the Republic took office on 11 March 2010. During his campaign and at a meeting with ANEF, he promised that, once he had been sworn in as the highest-ranking magistrate of the State, he would not dismiss any public servant and that he would respect labour stability and the rights conferred on public servants by the laws currently in force.
3. 362. The APU alleges that, despite the promises made by the President of the Republic and with or without his approval, the authority of the Labour Directorate proceeded to implement policies that resulted in the dismissal of a number of public servants and in pay cuts for others, as well as policies that violated the rights of the leaders of public servant associations and, in particular, those of the leaders of APU. This occurred as the result of acts that can only be described as decisions taken by the authority in question without so much as an unsatisfactory performance evaluation to justify them and with no regard for the norms enshrining freedom of association.
4. 363. As regards the acts committed against the leaders of APU, the complainant states that Mr Fernando Hidalgo Rojas, the national treasurer of APU, was the successful candidate in an internal recruitment process, which was announced in Circular No. 138 of 7 December 2006, and took up his post as Chief of the Provincial Labour Inspectorate of Linares, Seventh Region of Maule, on 1 April 2007. Subsequently, in Circular No. 102 of 30 August 2010, the Labour Directorate called for a new process for recruiting labour inspectors, including inspectors for the Provincial Labour Inspectorate of Linares. The APU considers that this act expressly violated Act No. 19296, which provides that “leaders shall not be transferred from the place or post they occupy without their written consent”, which was not respected in this case. The complainant states that the acts committed against the national leader constituted a flagrant violation of an express norm. According to APU, this act was committed for the sole and specific purpose of removing the leader from his post without any grounds to justify such an act. In the light of this fact, APU proceeded to inform the authority in question that such an act violated trade union immunity and constituted an act of anti-union discrimination. The APU highlights that it publicly denounced this act, which forced the authority to overturn its decision.
5. 364. However, the complainant adds that a new act was committed against another national leader of APU on 7 March 2011. Indeed, the authority in question, without grounds related to her qualifications and/or of a disciplinary nature, proceeded to remove Ms Elena Creus Castro, the incumbent national president of APU, from her post while she was on legal leave. Therefore, this act was carried out without prior consultation and on the basis of a fait accompli.
6. 365. The complainants state that both acts have infringed and continue to infringe the rights of the national leaders of APU and that they have been carried out against the rule of law. The complainants argue that such acts have a basis in the instructions of the President of the Republic, who, through the Ministry of Labour and Social Security, has ordered the internal restructuring of the Labour Directorate and, in particular, of the Labour Inspection Department, where Ms Creus Castro had served as Chief of the Legal Unit since 2003, during which time she maintained an exemplary record and never received any complaints regarding her performance. According to APU, the argument put forward by the authority to justify this decision has no basis in the Administrative Statute regulating public servants (Act No. 18834) and, in addition, violates Act No. 19296, which was promulgated on 28 February 1994 and which regulates associations of public servants employed by the Government. The relevant section of the Act provides as follows:
   • Section 25. Directors of public servant associations shall enjoy trade union immunity, in other words, they shall be protected from dismissal from the date of their election until six months after their resignation, provided that their resignation does not occur as a result of censure by the assembly of the association in question or of formal removal from office as a disciplinary measure authorized by the Office of the Comptroller General of the Republic. Similarly, immunity shall not apply in the case of the dissolution of an association, when that dissolution is the result of the application of section 61, paragraphs (c) and (e), or of factors provided for in the internal regulations, provided that, in the latter case, the factors in question attribute culpable or malicious conduct to the directors of that association. Moreover, during the period referred to in the previous paragraph, leaders shall not be transferred from the place or post they occupy without their written consent. Similarly, they shall not be subject to annual assessments during that period unless such an assessment is expressly requested by the leader. If no such request is made, the most recent assessment shall apply for all legal purposes.
7. 366. The complainant states that the public body responsible for ensuring compliance with labour legislation, which includes these norms, and for remedying violations of trade union immunity by imposing fines on offenders and/or bringing perpetrators of acts undermining freedom of association before the national courts, as required by the Labour Code, has no qualms about carrying out the same acts, which, as a public service, it is required by law to remedy, against the leaders of APU, thereby setting a harmful precedent for workers’ organizations in the country. The APU decided to bring the Labour Directorate before the labour courts for violating fundamental rights (acts of anti-union discrimination and the dignity of the persons involved). Currently, the trial is at the stage of discussion. The complainant believes that, by carrying out the aforementioned acts, the authority of the Labour Directorate attempted to deny the legitimacy of this public servant organization, and, in particular, that of its national leaders, by failing to provide the protection required by law, which constitutes a violation of the standards set out in ILO Convention No. 151 and of the law regulating its functioning.
8. 367. The APU states that, according to the aforementioned norms, the National Labour Director, together with her executive board, has violated Act No. 19296, which regulates the functioning of public servant associations, and has disregarded and violated the standards set out in ILO Convention No. 151 by affording trade union activities inadequate protection, by disregarding the trade union immunity of its leaders, and by removing Ms Elena Creus Castro, the incumbent national president, from her post by means of an act that was arbitrary and had no basis in law. Therefore, this constituted a patent and flagrant act of anti-union discrimination against Ms Creus Castro and the organization. The APU believes that the fact that the State of Chile, under Supreme Decree No. 1539 of 11 September 2000, promulgated ILO Convention No. 151 as a law of the Republic, which had previously been adopted by the National Congress on 18 April 2000, makes the facts and acts described in the preceding paragraphs all the more serious. The fact that the Convention was fully incorporated into Chilean domestic legislation on 17 July 2001 makes these acts difficult to comprehend since they originated from the highest authority of the national public service, responsible for ensuring compliance with the law and for affording the principles of freedom of association special protection. The fact that Chile ratified ILO Convention No. 151 also implies that, in keeping with article 5 of the Constitution, the Convention enjoys constitutional standing, which means that the text in question prevails over domestic legislation, which, incidentally, includes the Administrative Statute regulating public servants (Act No. 18834).
9. 368. Thus, the state authorities are obliged to comply with domestic legislation, given that any failure to do so would constitute a violation of the principle of legality set out in articles 6 and 7 of the Constitution, in accordance with section 2 of the Constitutional Act establishing the General Principles of the State Administration (Act No. 18575). The APU adds that, under Act No. 29087, which was passed in 2006, a labour protection procedure was incorporated into domestic labour legislation. This procedure provides for the drafting of new sections of the Labour Code, namely sections 292 and 293, which refer to the violation of fundamental rights, such as anti-union discrimination, which are not mentioned in the Administrative Statute regulating public servants (Act No. 18834). Section 292 expressly provides that if the Labour Inspectorate, acting within its area of competence and without prejudice to its regulatory powers, learns of a violation of fundamental rights, it shall refer such an act to the competent court. From this, it may be deduced that the Labour Inspectorate is the body required by law to report any violation of the fundamental rights enshrined in ILO Convention No. 151 and in other normative instruments, which makes the conduct of the Labour Directorate all the more serious.
10. 369. It is surprising that the Labour Directorate and other state bodies, including the Office of the Comptroller General of the Republic, have attempted to avoid the full force and implementation of ILO Convention No. 151 by arguing that no law regulating its implementation has been passed. These excuses are a contradiction in terms and are repugnant to the moral and legal conscience of those who believe that the rule of law is maintained by a public order based on labour law, the main objective of which is to promote respect for and to protect the rights that, in turn, protect trade union activities and leaders. The APU believes that the Government should recant, with immediate effect, all the administrative actions it has taken or may take in the future through the Labour Directorate, which infringe the rights of any trade union leader representing public servants employed by the Labour Directorate and, in particular, the acts infringing the rights of Ms Elena Creus Castro, the national president of APU, given that these acts violate the normative provisions of domestic law and the principles and standards set out in Articles 4 and 5 of ILO Convention No. 151.
11. 370. In its communication dated 22 August 2011, ANFUSEGG, which is affiliated with ANEF, and through the latter, with the CUT, states that it is lodging a formal complaint against the Government of Chile for its violation of the standards and principles set out in ILO Convention No. 151, which protect and promote the right of public servants to organize and to freedom of association, on the grounds detailed below.
12. 371. The ANFUSEGG alleges that 178 public servants employed on fixed-term or fee contracts by various government services were dismissed from the Ministry between March and December 2010, and during the first trimester of 2011, without grounds other than their status as members of the organization, their participation in normal trade union activities and/or decisions taken by the authority in question, despite the total absence of any unsatisfactory performance evaluation to justify their dismissal.
13. 372. These dismissals affected public servants employed on a fixed-term contract. Despite their contracts being renewed every year, the public servants in question could be employed for two, four, five, ten, 20 or more years at a time. In other words, they perform permanent functions on behalf of the Office of the Minister and Secretary-General of Government. They do not service specific programmes, nor are they involved in politics, as the authority claims. Moreover, they maintain an exemplary professional record and are highly qualified.
14. 373. According to ANFUSEGG, these dismissals were the result of the mere presumption that the public servants in question thought differently to the new Government when it came to power on 11 March 2010. This attitude is ethically reprehensible and runs counter to the principles and standards of the ILO. These mass dismissals have been carried out against the rule of law, on the pretext that the services of the aforementioned public servants are no longer necessary or that their contract has expired, which is part of a subterfuge contained in the Administrative Statute regulating public servants (Act No. 18834) but which, in reality, entails acts that may be classed as an “abuse of rights”.
15. 374. The complainants state that the grounds for dismissal, “as long as their services are necessary”, which have been invoked in the case of the trade union members, are not referred to anywhere in the relevant legal statutes. They add that attempts to seek remedies to safeguard their constitutional rights before the national courts of appeal, in the face of their dismissal, have proven futile, as inevitably, despite the fact that the courts have ruled in favour of the public servants and against the authority in more than 90 per cent of cases, the Third Constitutional Chamber of the Supreme Court of Justice has consistently overturned those rulings, thereby validating and legitimizing dismissals with an overt political bias.
16. 375. In its communication dated 22 August 2011, FENAMINSA, which is affiliated with ANEF and, through the latter, with CUT, alleges that the Ministry of the Interior, which is a branch of the Government, despite the promises made by the President of the Republic and with or without his approval, proceeded to dismiss 800 public servants employed on a fixed-term or fee contract by the Ministry and related services between March and December 2010 and during the first trimester of 2011, without grounds other than their status as members of the organization, their participation in normal trade union activities and/or decisions taken by the authority in question, despite the total absence of any unsatisfactory performance evaluation to justify their dismissal.
17. 376. The complainant also adds that these dismissals affected public servants employed on a fixed-term contract. Despite their contracts being renewed every year, the public servants in question could be employed for two, four, five, ten, 20 or more years at a time. In other words, they perform permanent functions on behalf of the Ministry. They do not service specific programmes, nor are they involved in politics, as the authority claims. Moreover, they maintain an exemplary professional record and are highly qualified. These dismissals were the result of suspicions that the public servants in question thought differently to the new Government when it came to power on 11 March 2010. This attitude is ethically reprehensible and runs counter to the principles and standards of the ILO. These mass dismissals have been carried out against the rule of law, on the pretext that the services of the aforementioned public servants are no longer necessary or that their contract has expired, which is part of a subterfuge contained in the Administrative Statute regulating public servants (Act No. 18834) but which, in reality, entails acts that may be classed as an “abuse of rights”.
18. 377. The grounds for dismissal, “as long as their services are necessary”, which have been invoked in the case of the trade union members, are not referred to anywhere in the relevant legal statutes, which only recognize “administrative malpractice”, which runs counter to the principle of legality governing administrative actions, and are endorsed by the Office of the Comptroller General of the Republic, a regulatory body that is always sympathetic to the authority when it comes to denying the rights and dignity of public servants. In other cases, fixed-term contracts have not been renewed. For the most part, this affected public servants who were recruited or reinstated after the fall of the military dictatorship and during the early days of the first democratic Government. The complainants also add that attempts to seek remedies to safeguard their constitutional rights before the national courts of appeal, in the face of their dismissal, have proven futile, as inevitably, despite the fact that the courts have ruled in favour of the public servants and against the authority in more than 90 per cent of cases, the Supreme Court of Justice has consistently overturned those rulings, thereby validating and legitimizing dismissals with an overt political bias. Furthermore, the complainants add that, at the time of the filing of the complaint, the Office of the Comptroller General of the Republic had not handed down a ruling on this formal complaint that invokes ILO Convention No. 151 and that, in accordance with the law, repudiates the acts of the authority, which are denounced. As indicated in the preceding paragraphs, the Convention is a law of the Republic and enjoys constitutional standing in accordance with article 5, paragraph 2 of the Constitution.
19. 378. The complainant adds that it should be noted that the Office of the Comptroller General of the Republic issued, without comment or objection, the decree promulgating ILO Convention No. 151 as a law of the Republic, despite maintaining a complicit silence as regards its implementation until the date on which this formal complaint, which details the publicly known facts behind it, was lodged. For the complainant, the fact that the acts in question may be attributed to the President of the Republic (who promised to respect labour stability and the work of public servants) and to an individual belonging to the Ministry of the Interior who, regardless of the individual temporarily occupying the post, are required by the Constitution to respect and to promote compliance with the law, does nothing to attenuate the seriousness of the acts mentioned in the formal complaint. In fact, it makes them all the more serious. This is especially the case for laws referring to international treaties ratified by Chile that are in force, in accordance with article 5, paragraph 2 of the Constitution, and, consequently, to the need to respect the principle of legality set out in articles 6 and 7 of that text, in accordance with section 2 of the Constitutional Act establishing the General Principles of the State Administration (Act No. 18575).

B. The Government’s reply

1. 379. In its communication dated 21 October 2011, the Government provided the following information:

I. Concerning the allegations made by APU

1. 380. The organization that has referred the present case to the Committee on Freedom of Association is one of the two public servant associations established under Act No. 19296. The oldest and the most representative of the two is the National Association of Public Servants of Chile (ANFUNTCH), which was established in 1938, while APU was established in 1995. Both organizations function in total freedom and carry out all their trade union activities without restriction. In its communication, APU made the following allegations against the Chilean State: (1) that it violated the trade union immunity of the leader Mr Fernando Hidalgo Rojas when, in August 2010, under the auspices of the authority in question, it called for a recruitment process to appoint labour inspectors to various offices throughout the country, including the office overseen by Mr Rojas, which the complainants consider to constitute a violation of section 25 of Act No. 19296, which provides that leaders shall not be transferred from the place or post they occupy without their written consent; (2) that it violated the trade union immunity of Ms Elena Creus Castro when, under the auspices of the authority in question, it ordered the restructuring of the Labour Inspection Department of the Labour Directorate in March 2011, which altered the structure of the Legal Unit to which Ms Creus Castro belonged, a decision that, according to the complainant, has no basis in the Administrative Statute in force and violates section 25 of Act No. 19296; and (3) that, through these alleged acts, it attempted to deny the legitimacy of APU and, in particular, that of its leaders, thereby violating domestic law and Articles 4 and 5 of ILO Convention No. 151.

II. The context in which the allegations and complaints were made. Redefining and restructuring labour services.

1. 381. The Government adds that it should be noted that the context in which these allegations were made was defined by the rational introduction of a series of changes, new approaches and regulations by the new authority. It is common knowledge that the arrival of the new Government in 2010 led to a natural change of administration in public institutions, including the Labour Directorate, which is a decentralized public service that comes under the authority of the Ministry of Labour and Social Security. The activities of the Labour Directorate fall within an area that is particularly complex and subject to change, which is the area governed by labour standards, where the demands of users are increasingly diverse and pressing, not to mention growing and exacting. In this context, the need to adopt diverse and progressive measures aimed at equipping the institution to successfully meet internal and external demands, and to complete the tasks entrusted to it for the common good, has proven unavoidable. This has been the situation across various areas of the Labour Directorate over the last decade, since it first perceived the need to adapt to a variety of challenging situations, namely, labour reform, the introduction of new technology, changes in administrative procedure, procedural reform and the growth of the working population, etc.
2. 382. In this connection, the Government believes it should be noted that certain areas and levels of the institution have recently undergone change and reform in order to deal with new policies and challenges, which range from the appointment of new regional directors and of provincial and communal labour inspectors; the opening of new offices and an increase in field inspectors (fiscalizadores de terreno); to the closure, restructuring and creation of units within departments at the central level so that they can perform their functions in a more efficient, effective and coordinated manner, as required by the Constitutional Act establishing the General Principles of the State Administration (Act No. 18575). As regards the last point, the Labour Directorate, following the completion of the relevant studies and assessments, indeed called for changes, adjustments and streamlining measures not only within its regional and local bodies but also within the departmental structures at the central level. This was the context in which the authority made changes within the Administration and Finance Department, by appointing new chiefs, namely the Deputy Chief of the Department itself, the Chief of the Procurement Unit and the Chief of the Supply and Logistics Unit. Furthermore, a new chief was appointed to the Statistics Unit within the Department of Studies, and a new deputy chief to the Human Resources Department. In addition, the authority ordered the assimilation of the Data Processing Centre into the Personnel Unit and the closure of the Occupational Health Unit and the Training and Development Unit. However, as regards its operational lines, the Labour Directorate passed Exempt Resolution No. 133 of 17 March 2011, which established and streamlined the new organizational and functional structure of the Legal Department; Exempt Resolution No. 2 of 6 January 2011, which altered the structure of the Labour Relations Department and established the relevant units; and Exempt Resolution No. 176 of 8 March 2011 concerning the Labour Inspection Department, which will be mentioned in detail in the following paragraphs. By way of an example, these resolutions provided for the establishment of the Legal Oversight Unit within the Legal Department, for the closure of the Pre-judicial Individual Conciliation Unit and for the transfer of the latter’s functions, which are linked to the institution’s outcome of conciliation, to the Labour Relations Department. In addition, these resolutions provided for the establishment of the Alternative Conflict Resolution and Social Dialogue Unit within the Labour Relations Department.
3. 383. As regards its lines of inspection, it should be noted that, during the first semester of 2010, the Ministry of Labour and Social Security launched a process aimed at assessing and diagnosing the problems of the Labour Directorate, which notably involved the intervention of an external consultant. The process yielded 22 proposals containing short-, medium- and long-term measures aimed at optimizing and modernizing inspection procedures within the Directorate. These new policies governing labour services have truly re-engineered the current system to favour all users, be they workers, trade unions or employers. This re-engineering has been carried out under the auspices of the Ministry of Labour and Social Security and with support and constant feedback from all the bodies involved.
4. 384. Therefore, it is clear that the series of adjustments carried out within the Labour Directorate, which is behind the complaint lodged by the organizations in question, may be attributed to global restructuring or to restructuring that addresses operating lines in the widest sense at the central, regional and provincial levels. These adjustments are therefore the result of organizational and functional decisions that are not aimed at any person in particular, much less at curtailing the trade union activities of the associations that exist within the institution.

III. Situation of the public servants mentioned in the complaint

1. 385. The Government states that Mr Fernando Hidalgo Rojas is a public servant employed on a regular contract. He is classed as a grade 13 inspector (fiscalizador) and was appointed as a grade 11 inspector (fiscalizador) on a fixed-term contract to the Provincial Labour Inspectorate of Linares, Seventh Region of Maule, where he currently works as the Provincial Labour Inspector. He is a leader of APU and currently serves as the treasurer of the organization. Mr Hidalgo has worked for the institution for 11 years. He was initially employed as a grade 16 inspector (fiscalizador) on 1 June 2000 under Resolution No. 167 of 25 May of the same year. After several appointments, including a promotion to a grade 15 inspector (fiscalizador) employed by the institution on a regular contract under Resolution No. 414 of 27 July 2009, Mr Hidalgo was appointed as the Provincial Labour Inspector of Linares under Exempt Resolution No. 1436 of 29 March 2007, having successfully completed the recruitment process announced in Circular No. 138 of 7 December 2006, which set out the criteria governing the recruitment of chiefs to the offices based in Calama, Choapa Illapel, San Antonio, Linares, Molina and Puerto Montt. Paragraph III of the aforementioned Circular, entitled Conditions governing posts, provides that:
   • Having completed three years in the post, the Labour Director can decide to grant a three-year extension or to call for a new recruitment process. In order to take this decision, the Labour Director must be in possession of 4 reports: one report from the appropriate Regional Director, one from the Chief of the Labour Inspection Department, one from the Chief of the Labour Relations Department and one from the Chief of the Legal Department.
2. 386. By exercising her power to call for a new competition once the period of three years referred to in the aforementioned paragraph had elapsed, she proceeded to include the Provincial Labour Inspectorate of Linares in the call for the competition, which was held by the national authority and announced in Circular No. 102 of 30 August 2010, with a view to recruiting chiefs to the following Labour Inspectorates: the Provincial Labour Inspectorate of Iquique, the Communal Labour Inspectorate of Pozo Almonte, the Provincial Labour Inspectorate of Antofagasta, the Provincial Labour Inspectorate of San Felipe, the Communal Labour Inspectorate of Quilpue, the Provincial Labour Inspectorate of Concepción, the Provincial Labour Inspectorate of Ñuble, the Provincial Labour Inspectorate of Arauco, the Provincial Labour Inspectorate of Punta Arenas, the Provincial Labour Inspectorate of Tierra del Fuego, the Provincial Labour Inspectorate of Valdivia, the Provincial Labour Inspectorate of La Unión, the Provincial Labour Inspectorate of Arica, the Provincial Labour Inspectorate of Santiago Centro, the Provincial Labour Inspectorate of Melipilla, the Communal Labour Inspectorate of Buin, the Communal Labour Inspectorate of Santiago Norte and the Communal Labour Inspectorate of Norte Chacabuco. However, it was noted that the decision to include the Provincial Labour Inspectorate of Linares necessitated special criteria (namely, the four reports), which differed from the criteria for recruiting chiefs to the remaining Labour Inspectorates, mentioned in Circular No. 102. Subsequently, in an effort to streamline the criteria for recruiting chiefs through the competition and to avoid the candidates for the post at the Provincial Labour Inspectorate of Linares having to satisfy criteria that candidates for the other Labour Inspectorates did not, a decision was taken to expressly exclude the Provincial Labour Inspectorate of Linares from the recruitment process in Circular No. 112 of 10 September 2010. Therefore, the post of Provincial Labour Inspector of Linares occupied by Mr Hidalgo Rojas was not affected in any way.
3. 387. The Government wishes to underline that in no way has the current administration violated or attempted to violate the trade union immunity of Mr Hidalgo Rojas who, to date, is performing his functions as the Provincial Labour Inspector of Linares without restriction, the very functions he falsely claims the authority to have infringed.
4. 388. As regards Ms Elena Creus Castro, she is the incumbent national president of APU and has been a leader of the organization since 1991. She is a public servant employed on a regular contract and is classed as a grade 7 professional. She joined the Labour Directorate on 17 August 1981 (between 1 January 1985 and 5 October 1986 she worked for the Social Security Service) and, since 6 October 1986, she has been working for the Labour Inspection Department, where she currently works as a legal advisor. In that Department, Ms Creus was Chief of the Fine Control and Review Unit until 2003, before being appointed as Chief of the Legal Unit, a post which she occupied until March 2011 before beginning work as a legal advisor following the restructuring of the Labour Directorate and of her department in particular, which led to the closure of the Legal Unit. The reasons for this closure will be explained below. It should be noted that, under Resolution No. 1142 of 6 October 2003, the Fine Control and Review Unit to which Ms Creus belonged was closed following the transfer of its functions to a new unit (the User Services Unit), created under the same Resolution, causing the public servant to be appointed to the Legal Unit, also established under that Resolution, in spite of her status as a trade union leader at that time.
5. 389. As regards the closure of the Legal Unit, the Government highlights that Resolution No. 1142 of 6 October 2003 established the structure of the Labour Inspection Department (previously known in Spanish as the Departamento de Fiscalización), which included four operative units, namely the Legal Unit, the Management Unit, the Inspection Support and Assessment Unit and the User Services Unit. Over time, its functional structure was subject to a number of alterations, which included the Management Unit overseeing the activities of the Inspection Support and Assessment Unit until March 2011. This also included specific tasks such as those overseen by what was then known as the Autonomous Inspection Unit, which had its own legal service. At the same time, the Legal Department gradually came to provide the technical support of a legal nature required for inspection activities, especially during the last four years, in keeping with the authority’s desire to devise a strategy that was more cross-cutting in terms of the service’s operational lines (legal and inspection lines as well as labour relations).
6. 390. As regards the assimilation of the Legal Unit, it should be noted that, under Resolution No. 1142, it was composed of two public servants (lawyers) and their respective functions, which were to advise the Chief of the Legal Department on legal matters falling within their area of competence, especially on proposing criteria and approaches for issuing authorizations and resolutions; to assist the office of the Chief of the Legal Department; to study and disseminate administrative jurisprudence on operational lines in response to queries and to submit requests based on emerging needs to the Legal Department; to assist with external queries, complaints and requests submitted to the service, either directly or through government channels, by drafting appropriate replies.
7. 391. The arrival of the new Government led to the adoption of measures aimed at modernizing and optimizing the functioning of labour services which, in turn, necessitated a further restructuring of the Labour Inspection Department, which entailed the creation of new units and the closure of others from 8 March 2011, including the Legal Unit. Following the closure of the Legal Unit, Ms Creus was appointed as a legal advisor within the Labour Inspection Department and was required to perform the following functions: to advise the Chief and Deputy Chief of the Labour Inspection Department, as well as the units it comprises, on legal matters falling within her area of competence and especially on proposing criteria and approaches for issuing authorizations and resolutions; to study and disseminate administrative jurisprudence in response to queries and to submit requests based on emerging needs to the Legal Department; to complete all tasks assigned to her by the Chief or Deputy Chief of the Labour Inspection Department that fall within her area of legal competence; whenever it is necessary, to advise the Chief and Deputy Chief of the Labour Inspection Department, as well as the chiefs of its units, on drafting legal documents to deal with external queries, complaints and requests submitted to the service, either directly or through government channels.
8. 392. As regards the new structure of the Labour Inspection Department, the Government has already explained that new approaches, needs and institutional challenges compelled the authority to restructure the Labour Directorate. Thus, following the creation of the User Services Unit referred to in the preceding paragraphs, the authority proceeded to establish and streamline a new organizational and functional structure for the Labour Inspection Department at the beginning of March 2011, as provided for under Exempt Resolution No. 176. The Exempt Resolution established the structure of the Labour Inspection Department, which is composed of an executive board overseen by a chief and a deputy chief, and of the following five units: (1) the Plans and Programmes Unit; (2) the Electronic Fine Administration Unit; (3) the Instructions and Procedures Control Unit; (4) the Normative Oversight and Request Management Unit; and (5) the Labour Security and Health Unit. As stated in the text of the Exempt Resolution, its entry into force repealed any internal norms governing the composition of the Labour Inspection Department that ran counter to its new structure. It is in the context of the aforementioned changes that the appointment of Ms Creus as a legal advisor within the department should be considered.
9. 393. Lastly, as regards the aforementioned restructuring, it should be noted that Ms Creus took 25 days of annual leave from 31 January 2011, returning to work on 7 March 2011, when she was informed of the plans for the department by the Deputy Chief of the Labour Inspection Department, Mr Gabriel Ramírez. Following the announcement of Exempt Resolution No. 176 and, at the request of Ms Creus, the Chief of the Labour Inspection Department explained to her in detail the functions she was to perform within the new departmental structure, which, naturally, are similar to those she performed prior to the aforementioned changes.

IV. Full respect for the freedom of association of public servant associations within the Labour Directorate

1. 394. The Government states that, in Chile, the Labour Directorate has been the greatest defender of freedom of association in the different areas where it is exercised and has devised long-term and cross-cutting policies, as well as practical outcomes, with the aim of safeguarding the right of workers to establish organizations and enabling these organizations to function in keeping with the autonomy accorded to them by law. Moreover, over the last 20 years, the service has played an undeniable role in protecting the individual and collective rights of workers, especially following the labour reform provided for under Act No. 19759 and the more recent procedural reform provided for under Act No. 20087, which have paved the way for the effective recognition of fundamental rights in the labour sphere which, incidentally, include the right to freedom of association.
2. 395. In this context, the establishment and functioning of public servant organizations within the Labour Directorate is a totally natural process that ensures full respect for the autonomy of the two existing organizations, namely APU and ANFUNTCH. However, the present complaint would make more sense if the actions of the authority involved either restricting the normal trade union activities of Mr Hidalgo and Ms Creus or the functioning of the association within the Labour Directorate, be it at the central, regional or communal level. However, this is in no way the case. It is sufficient to note that, last May, APU reshuffled its executive board without impediments or restrictions, in total freedom and with the relevant facilities of the service at its disposal. Both public servants were free to participate in this process to the extent that Ms Creus was able to obtain the number of votes required to become the national president of the organization for the period 2012–13, while Mr Hidalgo secured the post of national director for the same period.
3. 396. The Government states that, as is the case with all the leaders of the two associations operating within the Labour Directorate, Ms Creus, in her capacity as a leader and as a public servant at the central level, retains all her freedoms, rights, benefits and opportunities to fulfil her role as a representative, which can be verified both before and after the restructuring of the service. Thus, it is clear that her superiors are flexible in granting her trade union leave. She also enjoys unlimited personal, written, telephone and email access to public servants of different grades working at the central, regional, provincial and communal levels. The same applies to her relations with other associations and she enjoys constant access to the different authorities of the institution. Similarly, the authority does not restrict the trade union activities of Mr Hidalgo, a public servant appointed to the region of Maule, even when he has been appointed as the chief of a provincial office.
4. 397. It should also be noted that both associations, as well as their leaders, enjoy access to the email facilities of the Labour Directorate. Leaders are free to send any kind of communication to the service’s generic inboxes, which ensures that any communication reaches every public servant in the country. This has been demonstrated over the last few weeks by the circulation of statements, meant for public disclosure, that openly criticize the Government through this institutional medium, as well as by exchanges of opinion concerning the restructuring of the Labour Directorate. Moreover, the associations and their leaders are still free to make use of other resources for their trade union activities, such as meeting rooms, telephones, wall calendars, links on the intranet site of the Labour Directorate, etc. without restriction.
5. 398. The allegation concerning the violation of freedom of association also lacks doctrinal evidence. No aspect of the freedom of association enjoyed by the association and the leaders in question has been affected in the slightest by the organizational and functional restructuring ordered by the Labour Directorate, which has already been described in detail in the preceding paragraphs. There is no debate as to the status of Mr Hidalgo and Ms Creus as trade union leaders, nor is any attempt being made to deny the applicability of section 25 of Act No. 19296 in this case. However, at the same time, it should be noted that their right to freedom of association has not been curtailed in any way. Similarly, it should be noted that in no way does this case constitute a violation of ILO Convention No. 151.
6. 399. As regards Act No. 19296, which regulates the functioning of public servant associations, and the binding jurisprudence of the Office of the Comptroller General of the Republic, the Government states that since the legal framework in question is determined by provisions with a basis in administrative law, it is necessary to consider the jurisprudence of the Office of the Comptroller General of the Republic applicable to this case, in addition to the information contained in the preceding paragraphs. It should be noted that, by law and in accordance with the Constitution, the Labour Directorate, as a public service, is subject to the oversight of the Office of the Comptroller General of the Republic, given that its rulings are legally binding upon the Government currently in power, as may be deduced from Act No. 10336 and the relevant administrative jurisprudence.
7. 400. Section 25 of Act No. 19296, which is invoked in the complaint, provides that:
   • Directors of public servant associations shall enjoy trade union immunity, in other words, they shall be protected from dismissal from the date of their election until six months after their resignation, provided that their resignation does not occur as a result of censure by the assembly of the association in question or of formal removal from office as a disciplinary measure authorized by the Office of the Comptroller General of the Republic. Similarly, immunity shall not apply in the case of the dissolution of an association, when that dissolution is the result of the application of section 61, paragraphs (c) and (e), or of factors provided for in the internal regulations, provided that, in the latter case, the factors in question attribute culpable or malicious conduct to the directors of that association. Moreover, during the period referred to in the previous paragraph, leaders shall not be transferred from the place or post they occupy without their written consent. Similarly, they shall not be subject to annual assessments during that period unless such an assessment is expressly requested by the leader. If no such request is made, the most recent assessment shall apply for all legal purposes. Directors of public servant associations shall have the right to request information from the authorities of the relevant institution on issues and norms related to the objectives of the associations and to the rights and obligations of their members. The authorities of the institution shall receive leaders appropriately and provide them with the relevant information. Moreover, they shall have the right to request participation in the examination of policies concerning the rights and obligations of the personnel of the institution in question.
8. 401. The Office of the Comptroller General of the Republic, harmonizing the remit of section 25, paragraph 2 with the provisions of section 31, paragraph 2 of the Constitutional Act establishing the General Principles of the State Administration (Act No. 18575) (which empowers chiefs to direct, organize and administer their service; to monitor it, to ensure compliance with its objectives and to oversee its management), stipulated in Decision Nos 7659 of 2010, 45740 of 2008, 26282 of 2009, 26948 of 2009, 60641 of 2009 and 62877 of 2009, 20111 of 2007 and 55884 of 2007 that, while trade union leaders are protected by the immunity referred to in section 25 of Act No. 19296, which guarantees their right not to be transferred from the place or post they occupy, this cannot, however, prevent the authority of the service in question from exercising its power to reform or restructure its offices when circumstances call for such an action, especially when this internal restructuring has a basis in section 5 of Act No. 18575, which provides that authorities shall ensure the effective functioning of public services. In addition, Decision Nos 7526 of 2006, 38610 of 2005 and 49115 of 2000 of the same regulatory body maintain that a post whose nomenclature has not been provided for in the law regulating the distribution of permanent staff, as in the case of Ms Creus, may be assigned or entrusted functions. These Decisions add that the cessation of the functions entrusted to a leader does not constitute a violation of the trade union immunity referred to in section 25 of Act No. 19296 since it merely signals the end of a circumstantial situation defined by the needs of the institution.
9. 402. The Office of the Comptroller General of the Republic adds that the cessation of the functions entrusted to a leader does not constitute a violation of the trade union immunity referred to in section 25 when, according to this principle, the functions that leaders are entitled to retain are those attached to the post to which they have been appointed. The Government adds that the regulatory body has, in turn, pointed out that assigned or entrusted functions do not constitute a right that features in the patrimony of public servants who are assigned specific tasks but, in fact, constitute a necessary administrative measure that the authority must adopt in order for the relevant service to meet public or collective needs in a regular, uninterrupted and permanent manner. Lastly, as regards the case of Mr Hidalgo, it is difficult to see how the right he invokes (the right not to be transferred from the place or post he occupies without his consent) has been violated when, as has been explained, the functions assigned to him corresponded to those of the chief of office (the Provincial Labour Inspector of Linares) which, in this case, were already subject to review every three years; the same functions that, incidentally, he performs to date.

C. The Committee’s conclusions

1. 403. The Committee observes that, in the present case, APU and ANEF allege that since the current Government came to power on 11 March 2010, the authority of the Labour Directorate proceeded to implement policies that violated the rights of the leaders of public servant associations, particularly those of the leaders of APU. They allege that: (1) in order to remove Mr Fernando Hidalgo Rojas, the national treasurer of APU, from his post, the authority of the Labour Directorate called for a new recruitment process to fill the post occupied by the leader, who was the successful candidate in an internal recruitment process (the complainants state that the authority only overturned its decision after they publicly denounced this act); and (2) Ms Elena Creus Castro, the national president of APU, was removed from her post while she was on legal leave. The Committee notes that (i) ANFUSEGG alleges that, between March 2010 and the first trimester of 2011, 178 public servants employed on fixed-term or fee contracts were dismissed from the Ministry for being members of ANFUSEGG and for participating in normal trade union activities (according to the complainant, the Third Constitutional Chamber of the Supreme Court of Justice validated the dismissals); and (ii) FENAMINSA also alleges that, between March 2010 and the first trimester of 2011, 800 public servants employed on a fixed-term or fee contract were dismissed (some of whom had served for over 30 years) for being members of this trade union organization (according to the complainant, the Office of the Comptroller General of the Republic and the Supreme Court of Justice validated these dismissals).
2. 404. As regards the allegations of APU and ANEF, the Committee takes note of the Government’s statement to the effect that: (1) the arrival of the new Government in 2010 led to a natural change of administration in public institutions, including the Labour Directorate, which comes under the authority of the Ministry of Labour and Social Security, and whose activities fall within an area that is particularly complex and subject to change; (2) in this context, the need to adopt diverse and progressive measures aimed at equipping the institution to successfully meet internal and external demands, and to complete the tasks entrusted to it for the common good, has proven unavoidable; (3) the Labour Directorate, following the completion of the relevant studies and assessments, called for changes, adjustments and streamlining measures, not only within its regional and local bodies but also within the departmental structures at the central level (whereby new chiefs were appointed); and (4) it is clear that the series of adjustments carried out within the Labour Directorate, which is behind the complaint lodged by the organizations in question, may be attributed to global restructuring or to restructuring that addresses operating lines in the widest sense at the central, regional and provincial levels. These adjustments are therefore the result of organizational and functional decisions that are not aimed at any person in particular, much less at curtailing the trade union activities of the associations that exist within the institution.
3. 405. As regards the allegation that a competition was called with the aim of removing the leader Mr Fernando Hidalgo Rojas from his post (a decision which was eventually overturned), the Committee takes note of the Government’s statement to the effect that: (1) Mr Hidalgo has worked for the institution for 11 years and, under Exempt Resolution No. 1436 of 29 March 2007, was appointed as the Provincial Labour Inspector of Linares, having successfully completed the recruitment process announced in Circular No. 138 of 7 December 2006, which set out the criteria governing the recruitment of chiefs for the offices based in Calama, Choapa Illapel, San Antonio, Linares, Molina and Puerto Montt; (2) paragraph III of the aforementioned Circular provides that “having completed three years in the post, the Labour Director can decide to grant a three-year extension or to call for a new recruitment process. In order to take this decision, the Labour Director must be in possession of four reports: one report from the appropriate Regional Director, one from the Chief of the Labour Inspection Department, one from the Chief of the Labour Relations Department and one from the Chief of the Legal Department; (3) by exercising her power to call for a new competition once the period of three years referred to in the aforementioned paragraph had elapsed, she proceeded to include the Provincial Labour Inspectorate of Linares in the call for the competition, which was held by the national authority. However, it was noted that the decision to include the Provincial Labour Inspectorate of Linares necessitated special criteria (namely, the four reports), which differed from the criteria for recruiting chiefs to the remaining Labour Inspectorates; (4) in an effort to streamline the criteria for recruiting chiefs, a decision was taken to expressly exclude the Chief of the Provincial Labour Inspectorate of Linares. Therefore, the post occupied by Mr Hidalgo Rojas was not affected in any way; and (5) in no way has the current administration violated or attempted to violate the trade union immunity of the leader in question. In the light of this information, the Committee will not pursue its examination of this allegation.
4. 406. As regards the alleged removal of Ms Elena Creus Castro, the president of APU, from her post while she was on legal leave, the Committee takes note of the Government’s statement to the effect that: (1) Ms Castro is a public servant employed on a regular contract who has been working for the Labour Inspection Department since 6 October 1986, where she currently works as a legal advisor; (2) she was Chief of the Fine Control and Review Unit until 2003, before being appointed as Chief of the Legal Unit, a post which she occupied until March 2011 before beginning work as a legal advisor following the restructuring of the Labour Directorate, which led to the closure of the Legal Unit; (3) under Resolution No. 1142 of 6 October 2003, the Fine Control and Review Unit to which Ms Creus belonged was closed following the transfer of its functions to a new unit created under the same Resolution, causing the public servant to be appointed to the Legal Unit in spite of her status as a trade union leader; and (4) following the closure of the Legal Unit, Ms Creus was appointed as a legal advisor within the Labour Inspection Department with functions similar to those she carried out prior to these changes. In the light of the information provided by the Government and given the fact that the public servant is still performing the functions she carried out prior to the aforementioned restructuring, which do not prevent her from carrying out her trade union activities, the Committee will not pursue its examination of this allegation.
5. 407. Lastly, the Committee regrets that the Government has not replied to the allegations made by ANFUSEGG concerning the dismissal of 178 public servants employed on fixed-term or fee contracts from the Ministry for being members of ANFUSEGG and for participating in normal trade union activities, or to those made by FENAMINSA concerning the dismissal of 800 public servants employed on a fixed-term or fee contract, some of whom had served for over 30 years, for being members of the trade union organization. In these conditions, the Committee urges the Government to reply to those allegations without delay.