Report in which the committee requests to be kept informed of development - Report No 291, November 1993

1. 327. In a communication received by the Office on 15 April 1993, the National Federation of Health Workers (FENATS) presented a complaint of violation of freedom of association against the Government of Chile. The Government furnished its comments and observations on the matter in a letter dated 30 September 1993.
2. 328. Chile has ratified neither the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), nor the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), nor the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant federation's allegations

1. 329. The FENATS denounces the fact that Mrs. Graciela Cruz Farias, the national leader of this trade union federation and leader also of the eighth region in which she is active in this capacity at the Concepción Hospital, has been subjected - the federation maintains - to persecution on anti-union grounds.
2. 330. The complainant federation states that it covers 39,000 public health employees whose legal status, however, prevents them from forming a trade union. The FENATS explains that the Chilean Government has nevertheless drafted a Bill that will be submitted to Congress with a view to guaranteeing these workers the right to organize. It adds that because of the problem of their legal status, these state workers have set up corporations and associations by virtue of the right of association proclaimed in the Constitution. The complainant federation adds that it is a corporation affiliated to the Single Central Organization of Workers (CUT), which supports this complaint.
3. 331. As regards the substance of the case, the FENATS states that on 9 February 1993 the trade union leader in question was dismissed from her post in the public service by an internal administrative disciplinary measure which was not a court ruling and in which no civil or labour court had been involved. The dismissal was made on the grounds of "repeated lateness and misdemeanours" in the service because the trade union leader in question availed herself of the facilities that the Ministry of Health, in Circular No. 2A-917 of 1990, granted to the leaders of public-sector corporative organizations; the content of the circular has frequently been referred to by the President of the Republic.
4. 332. According to the complainant federation, this disciplinary measure constitutes anti-union persecution against this leader who has constantly been subjected to harassment and attacks by the director of the Concepción-Arauco health service, who dismissed her to prevent her from carrying out her duties as a trade union representative. The complainant federation adds that statements have been made by public employees affiliated to it according to which the director in question had, on several occasions, harassed Mrs. Cruz Farias both in her work as a public employee and in her trade union work. In November 1990 he dismissed her because, in her capacity as a FENATS leader, she had publicly supported human rights activities. However, the director was ordered by the then senior authority to reinstate her the next day. When the national executive of the FENATS was apprised of the situation, it approached the competent authorities with a view to ending the persecution to which she had been subjected. Following the disciplinary measure against her, the federation's members at the regional level had organized a work stoppage in solidarity with her.
5. 333. The complainant federation concludes by stating that the Bill concerning the freedom of association of public employees and the regulation of time off for trade union purposes has been submitted to Congress and that the President of the Republic has requested the directors of public services to grant trade union leaders facilities in respect of working hours. The Ministry of Health has also issued instructions to this effect. The fact that non-compliance with the obligation to be present at work was invoked as grounds for dismissing Mrs. Cruz Farias is in total contradiction with the standards laid down by the government authorities in respect of permission for trade union leaders to take time off. Consequently, the FENATS considers that the facts constitute an infringement of freedom of association, an essential element of which is the independence of trade union leaders, and that the situation giving rise to the complaint is of a very serious nature in a country that won back democracy with the active participation of workers' organizations.
6. 334. The FENATS trusts that the Committee on Freedom of Association will ask the Government to take measures to have this public employee reinstated.

B. The Government's reply

1. 335. In its reply of 30 September 1993, the Government explains that the FENATS is an association governed by private law which acquired legal status in 1968, in accordance with section 6 of Decree No. 110 of 1979 but that it cannot pursue trade union objectives and comes under the Ministry of Justice and not the Ministry of Labour.
2. 336. This situation stems from the fact that state employees, because of the ban on union membership that entailed in the administrative rules governing public employees, have to resort to types of associations that differ from those to which they would belong if they enjoyed the right to organize. The rules in question, approved by Act No. 18.834 and published in the Official Gazette of 23 September 1989, were adopted by the previous government. Section 78 of the Act provides that public employees may not: (1) organize or join trade unions within the framework of the state administration; and (2) direct, promote or take part in strikes, interruptions of activity or total or partial work stoppages by preventing people from working or machinery from operating, or otherwise disturb the normal functioning of the bodies of the state administration.
3. 337. Reconsidering the situation whereby public sector workers are discriminated against compared with those in the private sector from the point of view of the right to organize, President Aylwin's Government has submitted to Congress a Bill containing regulations in respect of associations of employees in the state administration and affording these workers adequate machinery for regulating and promoting modern and efficient management-labour relations. The Bill, which amends the above-mentioned section 78, is now before the Senate for discussion and the Government states that it is expecting the text to be adopted this year (1993). The Bill is based on the ILO's Labour Relations (Public Service) Convention, 1978 (No. 151).
4. 338. As regards the dismissal of an employee in the health service at Concepción-Arauco - which would constitute an infringement of freedom of association - the Government states that on 26 November 1991 the director of the hospital requested an administrative inquiry to determine the employee's responsibility in respect of unjustified absence from work, failure to clock in and out, and repeated lateness between October 1990 and September 1991 amounting, on 50 occasions, to 56 hours and eight minutes.
5. 339. The head nurse appointed to carry out the administrative inquiry found that between October 1990 and January 1992 the person concerned had indeed taken time off without reason on 65 days, that she had very seldom clocked in and out and that, between these dates, she had been late on 57 occasions which represented 69 hours not worked; all this had led her immediate chief to request that she be replaced. On 18 March 1992, in accordance with the administrative rules, the public prosecutor had proposed sanctions. He had concluded that the person in question had on several occasions failed to comply with her obligations under sections 55 and 66 of Act No. 18.834. He had confirmed the charges made against her and decided that deductions should be made from her pay corresponding to the time not worked and that her contract of employment should be terminated.
6. 340. According to the Government, the administrative inquiry revealed that the facts were fully proved and that the person concerned had herself admitted that she had frequently been absent. The fact that she disputes the charges made against her does nothing to lessen them. On the contrary, she bears them out when she states that her important duties as a trade union leader should exempt her from the obligation to carry out her work. Such an excuse is without legal foundation. Furthermore, she had previously been reprimanded and fined between 1980 and 1990 for being late or for acting disrespectfully towards her chiefs or towards other employees in the public administration. The Government goes on to say that she nevertheless appealed to the director of the Concepción-Arauco health service against the decision to dismiss her, in accordance with the administrative rules, but that her appeal was not well received and he confirmed the dismissal. She once again vainly appealed against this decision to a higher authority within the administration, which rejected the appeal and confirmed the decision in an official notification dated 9 February 1993. She then applied for legal protection to the Court of Appeal but her suit was rejected on 21 June 1993.
7. 341. The Government considers that the right of defence laid down in the rules contains guarantees of impartiality. It maintains that this former public employee has clearly not been persecuted on the grounds of her corporative activities. It was her duty, as a public employee, to work the required hours and to abide by the regulations applicable to 200,000 public employees.
8. 342. The Government specifies that the FENATS has 31 leaders on its national executive committee and disciplinary committee, who perform their duties normally, respect the hours of work, clock in and out and ask for permission to take time off for corporative reasons. The person concerned, on the other hand, as the inquiry revealed, interrupted her work at any time to go out, without asking her chief's permission or informing anybody at all. In order to facilitate her corporative work, she had even been authorized to sign a book when she left and returned instead of having to clock in and out. She did not sign the book either, however, and in fact refused to do so to ensure that there would be no proof that she was not performing her duties.
9. 343. The Government considers, as regards Mrs. Cruz Farias, that there was no persecution on anti-union grounds or infringement of freedom of association but merely enforcement of the laws and regulations in force which apply to all public employees.
10. 344. The Government states that it has granted considerable facilities to enable associations of public employees to carry out their corporative work without impeding the normal running of the service, as is proved by Presidential Resolution No. 942 of 10 July 1992 which the Government has enclosed. This text refers to a Bill submitted to Congress which aims in particular to settle the question of the establishment of associations of employees in the administration and to grant the leaders of such associations trade union immunity. The text also informs the directors of public services that they are to grant broad facilities to the bodies that have already been set up and to those which are being established, without however impairing the normal running of their services.

C. The Committee's conclusions

1. 345. The Committee observes that the present case concerns three questions: (1) the question of the ban on the right to organize of public employees that is still contained in the laws and regulations in force; (2) the question of the facilities that should be granted to workers' representatives in the public service; and (3) the allegation that a workers' representative in the public health sector was persecuted on anti-union grounds.
2. 346. As regards the ban on the right to organize of public employees which is still contained in section 78 of Act No. 18.834 of 23 September 1989 establishing the administrative rules in respect of public employees, adopted by the previous government, the Committee notes that the complainant federation and the Government both state that the present Government has submitted a Bill to Congress designed to guarantee the right to organize of employees in the state administration. The Government specifies that the Bill in question provides for adequate machinery for regulating and promoting management-labour relations and that it is based on the ILO's Labour Relations (Public Service) Convention, 1978 (No. 151). The Government adds that the text is now before the Senate and is expected to be adopted in the course of the year (1993).
3. 347. The Committee welcomes this information since the standards contained in Convention No. 87 apply to all workers "without distinction whatsoever" and therefore cover public employees. It notes with interest that the Government states that it wishes to reconsider the ban on trade union membership by public employees since this situation discriminates against public sector workers compared with those in the private sector in respect of the right to organize.
4. 348. The Committee requests the Government to ensure that, in accordance with the Government's statement, the Bill designed to guarantee the right to organize of public employees will be in line with the principles of freedom of association as regards protection of the right to organize of public employees as well as the facilities that should be granted to them, the procedures for determining conditions of employment and the settlement of disputes, and the civil and political rights they should enjoy. It also requests the Government to ensure that the said Bill will be adopted shortly. The Committee requests the Government to provide it with the text in question and to keep it informed of all developments in the matter.
5. 349. As regards the facilities that should be granted to workers' representatives in the public sector, the Committee notes, here too, that the complainant federation and the Government both state that the President of the Republic himself requested the directors of public services to grant workers' leaders facilities in respect of working time. According to the FENATS, such facilities had in any case been granted by the Ministry of Health in Circular No. 2A-917 of 1990 to the leaders of corporative organizations, and that the President of the Republic had made frequent references to the content of this circular. The Committee regrets that the Government made no mention of this Ministry of Health circular of 1990 in its reply. It nevertheless observes with interest that the full text of the Presidential Resolution of 10 July 1992 expressly requests the directors of public services to grant the broadest facilities to organizations that have already been set up or are being established without impeding the normal functioning of the services.
6. 350. The Committee welcomes the intention, expressed at the highest level by the President of the Republic, to grant the broadest facilities to organizations that have already been set up or that are being established in the public sector, since, according to Article 6, paragraph 1, of Convention No. 151, such facilities shall be afforded to the representatives of recognized public employees' organizations in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work. The Committee draws attention to the fact that according to paragraphs 2 and 3 of the said Article 6, and to Article 7, the granting of such facilities should not impair the efficient operation of the administration or service concerned, and that the nature and scope of these facilities should be determined by negotiation or such other methods as will allow representatives of public employees to participate.
7. 351. The Committee calls on the Government to ensure that, in accordance with the Presidential Resolution of July 1992, those aspects of the Bill designed to guarantee the right to organize of public employees that concern the facilities to be granted to the representatives of public employees' organizations will be based on the provisions of Articles 6 and 7 of Convention No. 151.
8. 352. As regards the specific allegation contained in this complaint, namely the anti-union persecution alleged to have been perpetrated against a national and regional leader of the complainant federation representing workers in the public health sector, the Committee observes that the interpretations of the facts given by the complainant federation and the Government are contradictory.
9. 353. According to the complainant federation, this leader was dismissed for unjustified absence and repeated lateness whereas she was merely availing herself of the facilities granted by a circular of the Ministry of Health in 1990 to the leaders of public sector corporations. The complainant federation recognizes that the person concerned had on many occasions been absent without authorization but maintains that it was on corporative business. Moreover it encloses the text of two circulars issued by the Under-Secretariat of State for Health in 1990 and 1991 requesting the directors of the health services to grant the broadest facilities to members of the national executive committee of the FENATS in carrying out their work and to consider measures likely to prevent the performing of these activities entailing an economic disadvantage for the leaders in question.
10. 354. The Government, however, states that the dismissal took place following an inquiry which gave ample proof that the person concerned had been absent on 65 days between 1990 and 1992 for no justified reason, that she had failed to clock in or out and that she had been late on 57 occasions, which represented 69 hours not worked; this had led her immediate chief to request that she be replaced. Furthermore, still according to the inquiry, between 1980 and 1990 the person concerned had been reprimanded and fined for lateness or disrespectful behaviour towards her chiefs or towards employees in the public administration. According to the Government, she had not been punished for her corporative activities but for having failed to put in the requisite number of hours and for not having respected the regulations governing 200,000 public employees.
11. 355. The Committee, for its part, insists on the fact that the granting of facilities should not impair the efficient operation of an administration or service but regrets that the circulars issued by the Secretariat of State for Health were not followed up at the Concepción hospital by a definition of the scope of the facilities to be granted, in particular through negotiation.
12. 356. In the circumstances, the Committee requests the Government to ensure that the case relating to the dismissal of the leader of the FENATS be examined once again in the light of the above-mentioned circulars, and if it is proved that she was dismissed due to her trade union activities, to ensure that this leader is reinstated in her post. The Committee requests the Government to keep it informed in this regard.